|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
Last Updated: 27 February 2002
Central Queensland Land Council Aboriginal Corporation v Attorney-General of the Commonwealth of Australia and State of Queensland [2002] FCA 58
CENTRAL QUEENSLAND LAND COUNCIL ABORIGINAL CORPORATION v ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA, STATE OF QUEENSLAND
N 6002 of 2001
WILCOX J
8 FEBRUARY 2002
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
N 6002 of 2001 |
BETWEEN: |
CENTRAL QUEENSLAND LAND COUNCIL ABORIGINAL CORPORATION APPLICANT |
AND: |
ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT STATE OF QUEENSLAND SECOND RESPONDENT |
JUDGE: |
WILCOX J |
DATE OF ORDER: |
8 FEBRUARY 2002 |
WHERE MADE: |
SYDNEY |
Amendments to the Judgment of the Honourable Justice Wilcox delivered on 8 February 2002:
Page 8, paragraph 20, line 1: Replace 26 May 2000 with 31 May 2000.
Associate to Justice Wilcox
Dated: 26 February 2002
Central Queensland Land Council Aboriginal Corporation v Attorney-General of the Commonwealth of Australia and State of Queensland [2002] FCA 58
CONSTITUTIONAL LAW - Whether amendments made to Queensland Mineral Resources Act are invalid because of failure to satisfy s 24MA of the Native Title Act or inconsistency with Racial Discrimination Act.
NATIVE TITLE -Future acts - Grants of mining tenements - Determinations by Commonwealth Minister concerning activities authorised by Queensland mining legislation - Whether decisions to make determinations were decisions of an "administrative character" reviewable under Administrative Decisions (Judicial Review) Act- Validity of determinations - Whether Commonwealth Minister entitled to take into account Queensland legislation enacted but not yet in force - Significance of statutory reference to "particular" land or waters - Whether provisions in three separate statutes are "law of a State" - Whether Commonwealth Minister erred concerning effect of a saving provision in Queensland statute.
Commonwealth of Australia Constitution s 109
Native Title Act 1993 ss 19, 24AA, 24MA, 24MB, 24MD, 24OA, 26, 26A, 43, 214, 227, 233
Administrative Decisions (Judicial Review) Act 1977 ss 3,5
Acts Interpretation Act 1901 ss 23(b), 46A, 48
Mineral Resources Act 1989 (Qld) ss 392, 393, 421
Native Title (Queensland) Act 1993 (Qld) ss 5, 8
CENTRAL QUEENSLAND LAND COUNCIL ABORIGINAL CORPORATION v ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA, STATE OF QUEENSLAND
N 6002 of 2001
WILCOX J
8 FEBRUARY 2002
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
1. The amendments made to the Queensland Mineral Resources Act 1989 in 1998 and 1999 are not invalid because of failure to satisfy s 24MA of the Commonwealth Native Title Act 1993 or inconsistency with the Commonwealth Racial Discrimination Act 1975.
2. Each of the determinations pursuant to s 26A(1) of the Native Title Act 1993, made on 31 May 2000 by the first respondent Attorney-General of the Commonwealth of Australia, is valid and effective in law.
3. Each of the determinations pursuant to s 43(1)(b) of the said Act, made on the said day by the said respondent, is invalid and without legal effect.
AND THE COURT ORDERS THAT:
4. All questions concerning costs be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
BETWEEN: |
CENTRAL QUEENSLAND LAND COUNCIL ABORIGINAL CORPORATION APPLICANT |
AND: |
ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT STATE OF QUEENSLAND SECOND RESPONDENT |
JUDGE: |
WILCOX J |
DATE: |
8 FEBRUARY 2002 |
PLACE: |
SYDNEY |
1 Central Queensland Land Council Aboriginal Corporation challenges the validity in law of:
(i) certain amendments to the Mineral Resources Act 1989 (Qld); and
(ii) seven determinations made under the Native Title Act 1993 by the first respondent, Attorney-General of the Commonwealth of Australia ("the Commonwealth Minister" or "the Minister"), in respect of specified mining activities undertaken pursuant to rights conferred by the Mineral Resources Act.
2 The Queensland Attorney-General intervened in order to put submissions to the Court respecting the validity of the statutory amendments. Later, the State of Queensland was joined as second respondent to the proceeding.
The legislative background:
(i) Native Title Act
3 Part 2 of the Native Title Act includes Division 3 (ss 24AA to 44G). That Division is concerned with the relationship between what the Act calls "future acts" and native title. Section 24OA states a general principle:
"Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title."
4 The term "future act" is defined in s 233 of the Act. It includes an act in relation to land or waters that is either:
(a) the making, amendment or repeal of legislation on or after 1 July 1993; or
(b) any other act that takes place on or after 1 January 1994;
and, apart from the Native Title Act, validly affects native title in relation to the land or waters or meets three criteria:
(i) it is to any extent invalid;
(ii) it would be valid to that extent if any native title in relation to the land or waters did not exist: and
(iii) if it were valid to that extent, it would affect native title.
5 Section 24AA(2) summarises the scheme of Division 3: "to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not". The possible bases of validity are listed in s 24AA(3) and (4). In connection with future acts consisting of the granting of mining interests by a State, in the absence of an indigenous land use agreement, the only possible basis of validity is that arising under Subdivision M of Division 3, as set out in s 24MD.
6 Section 24MD(1) provides that, if Subdivision M applies to a future act, "then, subject to Subdivision P (which deals with the right to negotiate), the act is valid".
7 Section 24MD(6) provides that the consequences specified in s 24MD(6A) (which basically puts native title holders and registered native title claimants in the same procedural position as ordinary freehold title holders) and s 24MD(6B) (which confers rights to be consulted and to object) apply to a future act to which Subdivision M applies, other than one to which Subdivision P applies or an act determined under s 26A, s 26B or s 26C of the Act.
8 Sections 24MA and 24MB specify the future acts to which Subdivision M applies. Section 24MA deals with legislative acts - that is, "the making, amendment or repeal of legislation" - and either:
"(a) the act applies in the same way to the native title holders concerned as it would if they instead held ordinary title to the land (or to the land adjoining, or surrounding, the waters) affected; or(b) the effect of the act on the native title in relation to the land or the waters is not such as to cause the native title holders to be in a more disadvantageous position at law than they would be if they instead held ordinary title to the land (or to the land adjoining, or surrounding, the waters)."
9 Usefully, the Act provides examples of each of these situations:
"Example 1: An example of a future act covered by paragraph (a) is the making of legislation that permits mining on land in respect of which there is either native title or ordinary title.Example 2: An example of a future act covered by paragraph (b) is the amendment of legislation that permits mining on land that is subject to ordinary title so that it will also permit mining, on the same terms, on land in relation to which native title exists."
10 Section 24MB deals with non-legislative acts. Subsection (2) relates only to opal or gem mining. It can be ignored for present purposes. But subs (1) is important because it extends to the granting of mining interests. That sub-section provides:
"(1) This Subdivision applies to a future act if:(a) it is an act other than the making, amendment or repeal of legislation; and
(b) either:
(i) the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it; or
(ii) the act could be done in relation to the waters concerned if the native title holders concerned held ordinary title to the land adjoining, or surrounding, the waters; and
(c) a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:
(i) in the area to which the act relates; and
(ii) of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions."
11 It will be recalled that s 24MD(1)'s validation of an act to which Subdivision M applies is subject to Subdivision P. That Subdivision (which comprises ss 25 to 44) is concerned with the right to negotiate in respect of certain future acts. Those acts include a future act to which Subdivision M applies, that is done by a State government and consists of the creation of a right to mine or variation of such a right so as to extend the area to which it relates: see s 26(1). However, s 26(2) excludes, inter alia: "an act determined in writing by the Commonwealth Minister to be an approved exploration etc act" under s 26A.
12 Three of the seven determinations under challenge in this proceeding are determinations purportedly made under s 26A. Accordingly, if it is valid, each of those determinations relieves initiators of future acts covered by the determination from the necessity of complying with Subdivision P in respect of that act. Looking at the matter from the viewpoint of any native title holders or claimants, the effect of each determination is to take from them, in relation to acts covered by the determination, the benefit of the right to negotiate, under Subdivision P, they would otherwise enjoy. However, even if any particular determination is valid, for the future act also to be valid, as against any native title that may subsist in the relevant land or waters, it would still be necessary that the act be one to which Subdivision M applies.
13 Subdivision 26A is lengthy. However, it is so important to the argument in this case that I must set out most of it:
"(1) If the conditions in this section are satisfied, the Commonwealth Minister may determine in writing that an act, or that each act included in a class of acts, is an approved exploration etc act.(2) The first condition is that the act, or acts included in the class, consist of the creation or variation of a right to mine, where the right as so created or varied is a right to explore, a right to prospect or a right to fossick.
(3) The second condition is that the Minister is satisfied that the act or acts are unlikely to have a significant impact on the particular land or waters concerned.
(4) If the act or acts authorise drilling, this does not mean that the second condition cannot be satisfied.
(5) The third condition is that the Minister has:
(a) notified any relevant representative Aboriginal/Torres Strait Islander bodies, and notified the public in the determined way, of the proposed determination; and
(b) invited submissions from them about the proposed determination; and
(c) considered any submissions made in response to the invitation.
(6) The fourth condition is that the Minister is satisfied that, if the determination is made:
(a) all:
(i) registered native title bodies corporate; and
(ii) registered native title claimants; and
(iii) representative Aboriginal/Torres Strait Islander bodies;
in relation to any of the land or waters that will be affected by the act or acts will have a right to be notified that the act or each act included in the class is to be done; and
(b) any such persons or bodies will have a right to be heard by an independent person or body about:
(i) whether the act is to be done; and
(ii) any matter relating to the doing of the act;
unless no other person would have such a right, assuming the person had an interest of any kind in relation to the land or waters; and
(c) either:
(i) the person, or one of the persons, who will do any thing authorised by the act will have a legal obligation to consult appropriately any person or body covered by subparagraph (a)(i) or (ii), unless the person or body indicates that the person or body does not wish to be so consulted; or
(ii) procedures will be in place under which such consultation will be required;
for the purpose of minimising the impact of the act on the exercise of native title rights and interests in relation to land or waters that will be affected by the act, and in particular about the matters set out in subsection (7).
(7) ...
(8) ..."
14 The other four determinations of the Commonwealth Minister were purportedly made under s 43 of the Native Title Act. Although this section is part of Subdivision P, in a case where it is brought into operation, the effect of s 43 is to bypass the notification and negotiation requirements of that Subdivision. Section 43 allows the alternative of complying with an approved State regime. Subsections (1) and (2) of s 43 provide:
"(1) If:(a) a law of a State or Territory provides for alternative provisions to those contained in this Subdivision in relation to some or all acts to which this Subdivision applies that are attributable to the State or Territory; and
(b) the Commonwealth Minister determines in writing that the alternative provisions comply with subsection (2);
then, while the determination is in force, the alternative provisions have effect instead of this Subdivision.
(2) The alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister, they:
(a) contain appropriate procedures for notifying registered native title bodies corporate, representative bodies, registered native title claimants and potential native title claimants of the act; and
(b) require negotiation in good faith among the persons concerned; and
(c) provide for mediation by a person or body to assist in settling any dispute among the persons concerned regarding the act; and
(d) give registered native title bodies corporate and registered native title claimants the right to object against the act; and
(e) make provision on similar terms to section 30 and contain time limits similar to those applicable under this Subdivision; and
(f) provide that the body determining the objection consists of, or includes, persons enrolled for at least 5 years as legal practitioners of:
(i) the High Court; or
(ii) another federal court; or
(iii) the Supreme Court of a State or Territory; and
(g) make provision to the same effect as section 39 in relation to matters that are required to be taken into account by the body determining the objection; and
(h) if the alternative provisions involve the hearing and determination of the objection by a person or body other than the NNTT or a recognised State/Territory body for the State or Territory - provide for a member of the recognised State/Territory body (if any) or of the NNTT to participate in the determination; and
(i) provide that any decision of the body determining the objection may only be overruled on grounds of State or Territory interest or of national interest; and
(j) make appropriate provision for compensation for the act, including provision for trusts on similar terms to those in subsections 36C(5), 41(3) and 42(5); and
(k) if the alternative provisions allow a Minister to make a determination in relation to the act in circumstances other than those covered in paragraph (i) - provide for those circumstances to be similar to those set out in section 36A and for requirements similar to those in sections 36B and 36C to apply."
15 Subsection (3) provides for revocation of a determination if, at any time, the alternative provisions are amended so they no longer comply with subs (2). Subsection (4) authorises the making of regulations necessary to deal with transitional matters arising from the making, amendment or revocation of determinations under the section.
16 The Mineral Resources Act was enacted in 1989, before the decision of the High Court of Australia, in Mabo v State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 ("Mabo"), affirming the existence of native title in Australia. Understandably, therefore, it originally made no reference to native title or to holders or claimants of native title. However, in 1998 extensive amendments were enacted in order to repair this omission: see Native Title (Queensland) State Provisions Amendment Act (No 2) 1998 (Qld). That Act was assented to on 27 November 1998. The formal parts (ss 1 and 2) thereupon commenced; the remaining provisions did not.
17 Section 10 of the 1998 Act added seven new Parts to the Mineral Resources Act. They were:
(i) Part 12, headed "Introduction to Native Title Provisions";
(ii) Part 13, "Native Title Provisions for Prospecting Permits";
(iii) Part 14, "Native Title Provisions for Mining Claims";
(iv) Part 15, "Native Title Provisions for Exploration Permits";
(v) Part 16, "Native Title Provisions for Mineral Development Licences";
(vi) Part 17, "Native Title Provisions for Mining Leases";
(vii) Part 18, "Compensation Provisions".
18 The Mineral Resources Act was further amended in 1999. The most significant amendments, for present purposes, were those made by the Land and Resources Tribunal Act 1999, which came into full operation on 18 September 2000, and the Native Title (Queensland) State Provisions Amendment Act 1999 which significantly amended the 1998 Act. The amendments to the latter Act repealed the new Parts 12 to 18, intended to be added to the Mining Resources Act, and re-enacted them in different form, with an additional Part 19 headed "Transitional Provisions". The re-enacted provisions came into operation on 18 September 2000.
19 It will be necessary to refer to the content of some of these Parts in discussing particular submissions put by the parties.
The determinations
20 On 26 May 2000, the Commonwealth Minister made the following determinations:
(a) under s 26A of the Native Title Act:
(i) Native Title (Approved Exploration Etc Acts - Queensland) (Low Impact Prospecting Permits) Determination 2000.
This determination approved the grant of a prospecting permit under Part 3 of the Mineral Resources Act "that is a low impact prospecting permit to which Part 13 of that Act applies (including application because of Part 19)".
(ii) Native Title (Approved Exploration Etc Acts - Queensland) (Low Impact Exploration Permits) Determination 2000
This determination approved the grant, or renewal, of an exploration permit under Part 5 of the Mineral Resources Act to which Division 2 or Division 5 of Part 15 of that Act applies, including because of Part 19, or the variation of conditions to include or add "non-exclusive land" to an exploration permit under Part 5 of the Mineral Resources Act where the variation or addition is only for "low impact activities" within the meaning of s 482 of that Act. The term "non-exclusive land" is defined by s 422 of the Mineral Resources Act as "land over which native title has not been extinguished".
(iii) Native Title (Approved Exploration Etc Acts - Queensland) (Low Impact Mineral Development Licences) Determination 2000
This determination approved the grant or renewal of a mineral development licence under Part 6 of the Mineral Resources Act that is a low impact mineral development licence to which Division 2 of Part 16 of that Act applies, including because of Part 19, or the variation of conditions to include or add non-exclusive land to such a licence.
(b) Under s 43 of the Native Title Act:
(iv) Native Title (Right to Negotiate - Alternative Provisions) (Queensland Laws about Exploration Permits) Determination 2000
This was a determination that various Queensland laws, including Parts 5 and 12 and portions of Part 15 of the Mineral Resources Act, that were specified in a Schedule to the determination and provided alternative provisions to those contained in Subdivision P of Division 3 of Part 2 of the Native Title Act, comply with s 43(2) of the Native Title Act.
(v) Native Title (Right to Negotiate - Alternative Provisions) (Queensland Laws about Mineral Development Licences) Determination 2000
This was a similar determination, with reference to Parts 6, 12 and much of Part 16 of the Mineral Resources Act.
(vi) Native Title (Right to Negotiate - Alternative Provisions) (Queensland Laws about Mining Leases) Determination 2000
This was a similar determination, with reference to parts 7, 12 and much of Part 17 of the Mineral Resources Act.
(vii) Native Title (Right to Negotiate - alternative Provisions) (Queensland Laws about Mining Claims) Determination 2000
This determination referred to Parts 4, 12 and much of Part 14 of the Mineral Resources Act.
21 These seven determinations (along with six other determinations that were ultimately disallowed in the Senate) were tabled in the House of Representatives on 1 June 2000 and in the Senate on 5 June 2000. The seven determinations were published in the Gazette on 18 September 2000 and commenced to operate immediately. This was the same day as that upon which the 1998 and 1999 amendments to the Mineral Resources Act commenced operation.
22 The Mineral Resources Act was further amended by other statutes, assented to after the date of the Commonwealth Minister's determinations. Three of those statutes came into effect on or before 18 September 2000. They do not appear to affect any of the issues in this proceeding.
The Minister's reasons
23 Pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977, a request was made to the Commonwealth Minister for a statement of reasons in relation to the making of each determination. In due course, on a date not disclosed by the evidence, the Minister provided a statement of reasons in respect of each of the decisions, being seven separate statements. In each statement of reasons, the Minister said the provision of the statement "is not an admission that the decision to make the determination is a decision of an `administrative character' for the purposes of (the Administrative Decisions (Judicial Review) Act)." The Minister reserved his right to argue at any time, and in any relevant process, that the decision to make the determination was not such a decision.
24 Each statement of reasons is lengthy. It is necessary for me to refer to the statements but this will best be done in the context of considering counsel's arguments, rather than by a summary at this stage.
The proceeding
25 On 6 February 2001 the applicant instituted this proceeding, by filing an Application seeking review of the Commonwealth Minister's decision to make each of the determinations. The application was stated to be based on both the Administrative Decisions (Judicial Review) Act and s 39B(1) and (1A) of the Judiciary Act 1903. Several grounds were identified: errors of law, lack of jurisdiction and failure to take into account relevant circumstances. The applicant sought a declaration that each of the determinations is invalid and void or an order quashing or setting aside each determination.
26 The Application was subsequently amended. An early, and uncontentious, amendment added a claim of unreasonableness and varied the particulars relied on by the applicant. A later amendment, made only days before the projected hearing date, asserted, for the first time, that the 1998 and 1999 amendments to the Mineral Resources Act were invalid. Two reasons were assigned. First, it was said the making of each of the amending Acts was a "future act", for the purposes of the Native Title Act, which failed to satisfy either para (a) or para (b) of s 24MA of the Native Title Act (see para 8 above) and was therefore invalidated by s 24OA of that Act (see para 3). Second, the applicant contended, the amendments were inconsistent with the Racial Discrimination Act 1975, and were therefore invalid pursuant to s 109 of the Commonwealth of Australia Constitution.
27 This last contention required notice of the proceeding to be given to the various Attorneys-General pursuant to s 78B of the Judiciary Act. Notices were given. Only the Queensland Attorney-General indicated a wish to intervene in the proceeding at this stage. He appeared by counsel in order to put submissions to the Court in support of the validity of the amendments to the Mineral Resources Act. However, during the course of the hearing, I suggested to counsel for the applicant that an intervener might not be a sufficient contradictor of an attack on the validity of legislation; perhaps the State of Queensland should be a party. After consideration of the matter, the applicant sought leave to further amend the Application in order to join the State of Queensland as second respondent. This application was not opposed and I so ordered.
The issues
28 A separate question arises in respect of each of the seven determinations. Theoretically, one or more determinations might be valid and one or more others invalid. However, the submissions put to the Court drew no distinction between the various s 26A determinations and no distinction between the various s 43 determinations. Some submissions related to both the s 26A and s 43 determinations, some only to one of those two categories of determinations.
29 The issues before the Court are as follows:
(a) whether the amendments made to the Queensland Mineral Resources Act in 1998 or 1999, or any of them, are invalid because of:
(i) failure to satisfy s 24MA of the Native Title Act; or
(ii) inconsistency with the Racial Discrimination Act;
(b) whether the decisions to make the determinations, or any of them, were decisions of an "administrative character", within the meaning of the Administrative Decisions (Judicial Review) Act, so as to be susceptible to judicial review under that Act;
(c) whether the Commonwealth Minister had jurisdiction to make the s 26A determinations, having regard to the terms of s 24MB(1)(c) of the Native Title Act; or alternatively, whether the Minister erred in failing to consider whether a future act covered by any s 26A determination that he might make would be an act satisfying s 24MB(1)(c) of the Act;
(d) whether, in making his determinations, the Commonwealth Minister was entitled to take into account legislation passed by the Queensland Parliament, and to which assent had been given, but which was not yet in operation;
(e) whether, in considering the making of the four s 43 determinations, the Commonwealth Minister erred in law in treating the words "a law of a State" as including provisions spread over three separate statutes;
(f) whether, in considering the making of the three s 26A determinations, the Commonwealth Minister misconstrued subs (3) of s 26A; or, alternatively, failed to take into account the significance of the word "particular", in the description "the particular land or waters concerned";
(g) whether the Commonwealth Minister's s 26A determinations were void for unreasonableness;
(h) whether the Commonwealth Minister erred in law in his consideration of the effect of s 421 of the Mineral Resources Act upon the operation of s 392 of that Act.
30 I will deal separately with each of these issues.
Validity of the amendments to the Mineral Resources Act
31 As indicated in para 29, the applicant advances two bases of its claim that the 1998 and 1999 amendments to the Queensland Mineral Resources Act are invalid: failure to satisfy s 24MA of the Native Title Act and inconsistency with the Racial Discrimination Act. It is possible to consider those bases together.
32 At para 4 above, I noted the term "future act" includes the making, amendment or repeal of legislation on or after 1 July 1993 that, apart from the Native Title Act, validly affects native title in relation to land or waters.
33 Against that background, counsel for the applicant put an argument comprising what they called "four essential steps":
"(a) the enactment of the Queensland legislation authorising the carrying out of the various acts the subject of the Determinations in these proceedings was `a future act' for the purposes of the NTA; and(b) certain aspects of that legislation which authorise the carrying out of acts on land or waters, has the effect of causing native title holders in respect of such land or waters to be in a more disadvantageous position at law than they would be if they instead held ordinary title to that land or waters; and
(c) such provisions fail to satisfy the requirements of s 24MA of the Native Title Act and are invalid to the extent that they affect native title by virtue of the operation of s 24OA of the Native Title Act, or
(d) in the alternative to (c), such provisions are inconsistent with the Racial Discrimination Act 1975 (Cth) and s 7 of the Native Title Act and, accordingly, are invalid to the extent of such inconsistency by virtue of the operation of s 109 of the Constitution."
34 Counsel for the Commonwealth Minister and counsel for the Queensland Attorney-General and the State of Queensland disputed each step in the applicant's argument. They put three broad propositions:
(i) the making of neither the 1998 nor the 1999 amendments to the Mineral Resources Act was a "future act" within the meaning of s 233 of the Native Title Act; in no case did the amendment "affect native title" within the meaning of s 227 of that Act; accordingly, the making of the amendments did not need to pass the test in s 24MA of the Native Title Act to be valid;
(ii) if native title holders were placed in a "more disadvantageous" position than the holders of ordinary title, "that was as a consequence of the MR Act as it stood independent of the making of the MR amendments and not as a consequence of the making of the MR amendments";
(iii) In any event, native title holders are not in a "more disadvantageous position", under the current provisions of the Mineral Resources Act, than freehold title owners.
35 It is convenient to say at once that I reject the respondents' third proposition. Counsel for the applicant developed para (b) of their submission by detailing the respects in which they claim native title holders are disadvantaged by the current provisions of the Mineral Resources Act, in comparison with the holders of ordinary (freehold) title. They are clearly right. The 1998 and 1999 amendments to the Mineral Resources Act were designed to improve the position of native title holders, as compared with their position under the original Mineral Resources Act. Nonetheless, native title holders are in a more disadvantageous position under the current Mineral Resources Act than are freeholders.
36 The drafter of the 1998 and 1999 amendments did not generally bring native title holders within the Act's definition of "owner", and thereby ensure they would be equated for all purposes with freehold owners. Rather, the drafter made separate and different provisions in respect of native title holders. Counsel's analysis, which I need not reproduce, shows those provisions confer entitlements inferior in many respects to the entitlements conferred on "owners" by the Mineral Resources Act.
37 However, I accept the respondents' first and second contentions. It seems to me the applicant's argument falls into the error of considering the position of native title holders under the consolidated Mineral Resources Act, rather than under the particular piece of legislation whose making constitutes the alleged "future act".
38 The Mineral Resources Act was originally enacted in 1989. It made extensive provision for the granting of mining rights, the exercise of which might affect the continued enjoyment or exercise of native title rights. However, the original Act contained no reference to native title. There was, of course, good reason for this: the statute was enacted before the decision in Mabo; native title rights were not yet acknowledged by Australian law.
39 After the High Court made that acknowledgment, and pursuant to s 19 of the Native Title Act, the Queensland Parliament enacted validating legislation, the Native Title (Queensland) Act 1993 (Qld). That Act adopted the meanings of words and expressions that were used in the Native Title Act: see s 5(1) of the Native Title (Queensland) Act. Therefore the term "past act", in the Native Title (Queensland) Act, had the meaning ascribed to it in s 228 of the Native Title Act. That meaning included the making of legislation before 1 July 1993 that, apart from the Native Title Act, was invalid to any extent but would have been valid to that extent if native title did not exist. That would have been the situation in relation to the Mineral Resources Act. It was enacted after the commencement of the Racial Discrimination Act and discriminated against native title holders, as compared with freeholders.
40 Against that background, s 8 of the Native Title (Queensland) Act was significant. It provided:
"Every past act attributable to the State is valid, and is taken always to have been valid."
41 The effect of this section was to validate the discriminatory provisions of the Mineral Resources Act. By virtue of s 19 of the Native Title Act, but notwithstanding other provisions of that Act, they became valid elements of Queensland law. Consequently, in considering the application of the "future act" provisions of the Native Title Act, the starting point must be the validated Mineral Resources Act, not a blank sheet of paper. The importance of that distinction may be seen when one turns to the definition of "future act" in s 233 of the Native Title Act, read with s 227.
42 It will be recalled that an element of one type of "future act" is that it consists of the post 1 July 1993 making or amendment of legislation. The 1998 and 1999 amendments to the Mineral Resources Act each provide that element. However, another element is that the post 1 July 1993 legislation either "validly affects native title in relation to land or waters to any extent" or, if it were valid, would affect native title. Land only "affects" native title, according to s 227, "if it extinguishes the native title rights and interests" or "if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise".
43 Counsel for the applicant did not contend the Mineral Resources Act extinguishes native title. However, they argued the provisions of the Act are wholly or partly inconsistent with the continued enjoyment or exercise of native title rights. The difficulty with the argument, of course, is that it does not distinguish between the effect of the consolidated Mineral Resources Act - that is the original Act with amendments to date - and the amendments themselves.
44 Counsel for the respondents analysed those provisions of the consolidated Mineral Resources Act that were identified by counsel for the applicant as disadvantaging native title holders, in comparison with freeholders. Their analysis is not disputed. It reveals that only two of the identified provisions were affected by the 1998 and 1999 amendments. Those provisions are ss 183 and 190 of the Mineral Resources Act, each of which was amended by substituting references to the "mining registrar" for references to the "Chief Executive". Obviously, neither of these amendments was inconsistent with the continued existence, enjoyment or exercise of native title rights and interests. The amendments did not affect those rights at all, nor the rights or interests of freeholders.
45 If neither the 1998 nor 1999 amending statutes "affected" native title, within the meaning of s 227 of the Native Title Act, it must follow enactment of neither of them was a "future act" within the meaning of s 233 of that Act.
46 It is necessary to note two arguments in reply advanced by counsel for the applicant. First, they say:
"... it is submitted that the position now mutually advanced by the Commonwealth and Queensland to the effect that the relevant Queensland provisions do not affect native title within the meaning of s 227 of the Native Title Act is fundamentally at odds with the fact that both the Commonwealth and Queensland saw and accepted the need to have determinations in place under ss 26A and 43 of the Native Title Act in order to avoid the operation of s 24OA of that Act. The basic point is well illustrated by the making of the s 43 Determinations. It is necessarily implicit in the terms of s 43 and the criteria applying to the alternative State provisions the subject of a determination role under s 43 that those alternative provisions necessarily affect native title rights and interests. Otherwise, ... what is the rationale of permitting alternative State provisions to displace the right to negotiate provisions in Subdivision P? Since the provisions of the Native Title Act themselves plainly affect native title rights and interests ...any State legislative provisions which validly displace Subdivision P must a priori affect native title within the meaning of s 227 of the Act to the extent that such provisions are inconsistent with rights conferred under that Subdivision."
47 This argument confuses the position under Queensland law with that under Commonwealth law. The question, in relation to s 233 of the Native Title Act, is the effect of the Queensland amendments upon native title holders' common law rights. The making of each amending Act constitutes a "future act", for the purposes of the Native Title Act, if the amendments are wholly or partly inconsistent with the continued existence, enjoyment or exercise of common law native title rights. In determining that question, it is not material that Commonwealth law imposes procedural requirements - for example, under Subdivision P of Division 3 of Part 2 of the Native Title Act - in respect of the exercise of rights conferred by the Queensland Act. Nor does it matter that Commonwealth law provides an alternative - for example, under s 43 of the Native Title Act - to compliance with those procedural requirements. The critical question is the effect of the Queensland amendments on native title holders' rights under Queensland law, including under the common law.
48 I agree with counsel that the provisions of the Native Title Act "plainly affect native title rights and interests" and that provisions of the consolidated Mineral Resources Act have a similar effect. However, it is a different question whether the amendments do so; it is their making which constitutes the alleged future acts.
49 Counsel's second reply point is that it is erroneous "to deal with the amendments in isolation". Counsel say amending legislation frequently, if not usually, has "no meaning or effect when viewed in isolation from the provisions of the Principal Act". That is true. Nobody would suggest amending legislation should be read in isolation from its Principal Act. However, that does not mean it is impossible to determine whether particular amendments have a particular effect. That can be done, by a "before and after" comparison.
50 If I am correct in concluding the making of neither the 1998 nor 1999 amendments constituted a "future act", within the meaning of s 233 of the Native Title Act, s 24MA of that Act has no application to this case; none of the amendments made to the Mineral Resources Act in 1998 and 1999 is invalid for failure to satisfy s 24MA.
51 I think it also follows there is no inconsistency between the amendments and the Racial Discrimination Act. Section 7(1) of the Native Title Act says that Act is to be read and construed subject to the Racial Discrimination Act. However, by s 7(3), that does not affect the validation of past acts in accordance with the Native Title Act. Accordingly, the Racial Discrimination Act does not invalidate the Native Title (Queensland) Act or affect the operation of s 8 of that Act. And, if that section is valid, the question becomes the same as in relation to "future act"; do any of the amending Acts extinguish or adversely affect native title rights? For the reasons already expressed, that question must be answered in the negative. It is unnecessary to deal with some alternative submissions of counsel for the respondent that were based on the terms of s 10 of the Racial Discrimination Act.
52 I conclude the Queensland legislation is not invalid for either of the reasons advanced on behalf of the applicant.
Decisions of an "administrative character"
53 Section 5(1) of the Administrative Decisions (Judicial Review) Act gives to an aggrieved person a right to apply to this Court for review of "a decision to which this Act applies".
54 Section 3 defines that term:
"decisions to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or
(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;
other than:
(c) a decision by the Governor-General; or
(d) a decision included in any of the classes of decisions set out in Schedule 1."
55 Counsel for the Commonwealth Minister argued their client's decision to make each determination was not a "decision of an administrative character"; therefore it was not a decision to which the Administrative Decisions (Judicial Review) Act applies. The consequence of this, according to the argument, is that the present proceeding is misconceived, in so far as it relies on that Act. Counsel for the Commonwealth Minister conceded their argument provides no answer to the applicant's claim, in so far as it is based on s 39B(1) and (1A) of the Judiciary Act. However, they say the grounds available to the applicant under those provisions are more limited than the grounds provided by the Administrative Decisions (Judicial Review) Act.
56 Counsel for the Commonwealth Minister contended the Administrative Decisions (Judicial Review) Act "maintains the trichotomy of administrative, legislative and judicial functions". They said, in their written outline of submissions:
"Although the distinction between legislative and administrative decisions may not be sharp and unequivocal, the essential distinction is between determining the content of rules of general application and applying those rules in particular cases. Adopting that distinction, the making of the s 26A and s 43 determinations was plainly legislative rather than administrative in character.* Each determination has the effect of permitting a general legislative framework to operate, within which particular cases are dealt with and the interests of individual native title holders, applicants for mining interests and governments taken into account.
* None of the determinations is directed to any individual native title holder or applicant for a mining interest, nor is it directed to the grant of any specific low impact mining right.
* Each of the s 26A determinations has the effect of prescribing a general rule by precluding the application of Subdivision P to the exercise of certain powers under the MR Act.
* Each s 43 determination has the effect of substituting procedures under Queensland law for the procedures under Commonwealth law where certain powers are exercised under the MR Act - and therefore has the effect of prescribing the general framework within which those powers are to be exercised."
57 Counsel drew attention to the requirement for public consultation made by s 26A(5) of the Native Title Act and the designation, by s 214, of determinations under s 26A(1) and s 43(1)(b) of that Act as instruments disallowable, by either House of the Commonwealth Parliament, under s 46A of the Acts Interpretation Act 1901.
58 Counsel for the applicant disputed that the decisions to make the determinations were legislative acts. They said each determination was concerned with the grant of a particular type of mining interest; none of the factors mentioned by their opponents negatived the proposition that the decisions were of an administrative character.
59 The test for determining whether a particular decision is one "of an administrative character" was considered recently by a Full Court comprising Branson and Lindgren JJ and myself: see R G Capital Radio Limited v Australian Broadcasting Authority [2001] FCA 855. We pointed out (at para 40) there is "no simple rule for determining whether a decision is of an administrative or a legislative character". However, we listed a number of factors relevant to that determination:
(i) legislative decisions determine the content of rules of general, usually prospective, application whereas administrative decisions apply rules of that kind to particular cases: see paras 43-47;
(ii) Parliamentary control of the relevant decision, for example by disallowance, although not definitive, is a pointer to the decision being properly characterised as legislative rather than administrative: see paras 51-54;
(iii) a requirement of public consultation is a further pointer to the decision being one of a legislative, rather than administrative, nature: see paras 59-61;
(iv) provision for review of the decision on the merits, for example by the Administrative Appeals Tribunal, is an indication the decision is of an administrative character (paras 72-76);
(v) the fact that a decision has a binding legal effect, in the sense of directly affecting the operation of other statutory provisions, suggests it is legislative in nature (para 77).
60 None of the factors mentioned in R G Capital Radio should be regarded as conclusive in itself. However, when those factors are considered, it ought to be held the decisions to make the subject determinations were decisions of a legislative nature, rather than administrative decisions. I agree with the comments made about the decisions by counsel for the Commonwealth Minister, as set out in paras 56 and 57 above. Those comments point to the decisions being characterised as legislative.
61 It follows the Administrative Decisions (Judicial Review) Act is not available to the applicant as a basis for challenging the validity of the decisions. The applicant's challenge must be determined by reference only to s 39B of the Judiciary Act.
Section 24MB(1)(c) of the Native Title Act
62 At para 10 above I set out the terms of s 24MB of the Native Title Act. It may be recalled this section deals with "acts passing the freehold test" that are non-legislative acts. As is common ground in the present proceeding, the grant of a mining interest, including a mining interest of a type covered by one or other of the subject determinations by the Commonwealth Minister, is capable of coming within the ambit of s 24MB. However, it will do so only if each of the paragraphs in either subs (1) or subs (2) of that section is satisfied. Subsection (2) is irrelevant to the present case. Paragraph (c) of s 24MB(1) requires that "a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:
(i) in the area to which the act relates; and
(ii) of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions."
63 It is clear from his statements of reasons that, in making the subject determinations, the Commonwealth Minister did not at any time turn his attention to s 24MB(1)(c). Counsel for the applicant submitted he ought to have done so. They argued the Minister had no jurisdiction to make either the s 26A or s 43 determinations unless and until he was satisfied that a particular future act would comply with s 24MB(1)(c). They contended, moreover, that the Minister had to be satisfied, not only about the existence of a law concerning the preservation or protection of sites, but also "that such a law effectively protected indigenous cultural heritage in respect of particularly sensitive areas or sites which could be adversely affected by a future act".
64 Counsel for the applicant put their s 24MB(1)(c) argument on alternative bases. First, they submitted, the absence of a finding in relation to that paragraph meant the Minister had no jurisdiction to make any determination. Second, even if the Minister had jurisdiction to make each of the determinations, his failure to take into account the question of compliance with the paragraph vitiated the exercise of his statutory power.
65 In relation to jurisdiction, counsel submitted:
"... the grant of a mining tenement, to use a generic term, must itself pass through the gateway of non-legislative acts in Subdivision M. If it does not, it will be invalid to the extent that it affects native title, by virtue of s.24OA. That conclusion may follow either because the grant itself fails to satisfy s.24MB, or because the legislation under which it is made fails to satisfy s.24MA. Questions concerning the operation of Subdivision P will not arise unless both the legislation and the mining tenements created under it pass through their respective gateways in Subdivision M. It is clear that the `alternative' provisions provided pursuant to determinations made under ss.26A or 43 only have application in relation to future acts which would otherwise fall within Subdivision P. Because, as noted, no act will fall within Subdivision P unless it is a future act to which Subdivision M applies, and no relevant act can occur absent valid legislation, in force at the time the act is done, it follows that the existence of such legislation is a jurisdictional precondition to a valid determination under either s.26A or s.43."
66 In developing the argument about failing to take into account a relevant fact, counsel referred to the fourth condition of exercise of the power to make a s 26A determination (notification and consultation) and said the purpose of this condition could be satisfied only if there existed effective legislation of the type stated in s 24MB(1)(c).
67 Counsel for the Commonwealth Minister argued their client was correct in not addressing the question of compliance with s 24MB(1)(c). They said the power to make determinations under s 26A and s 43 "does not depend on the actual existence of acts that would otherwise be subject to Subdivision P"; "once the ... determination is made, that determination will only apply to acts which would otherwise be subject to Subdivision P. It follows that the question whether the acts to which the determination relates are acts to which Subdivision M applies does not arise in the course of making the s 26A determination but only when that determination is applied to a particular future act or acts".
68 Counsel for the respondent went on:
"the power to make a s 26A determination does not depend on the actual existence of acts that would otherwise be subject to Subdivision P. On the other hand, once the s 26A determination is made, that determination will only apply to acts which would otherwise be subject to Subdivision P. It follows that the question whether the acts to which the determination relates are acts to which Subdivision M applies does not arise in the course of making the s 26A determination but only when that determination is applied to a particular future act or acts; that is, a s 26A determination can only take effect so as [sic] exempt a future act from the right to negotiate where that future act would otherwise have been subject to that right. The right to negotiate conferred by Subdivision P only applies to future acts which satisfy Subdivision M. For that reason, any s 26A determination cannot operate on a future act which does not satisfy Subdivision M. That subdivision will determine the class to which the s 26A determination will apply but has no bearing on the power to make the determination.It follows that Subdivision M, including s 24MB(1)(c), does not arise for consideration under s 26A; did not arise for consideration in respect of the determinations under challenge in these proceedings; and does not arise for consideration by this Court."
69 I accept the Minister's argument in respect of this aspect of the case. I think the submissions quoted in the preceding two paragraphs are correct. A decision about the making of a determination under s 26A or s 43 of the Native Title Act is a decision as to the legal regime that will govern any future act, falling within s 24MB, that is covered by the prospective determination.
70 This situation is most clear in relation to s 43. If the Minister makes a determination under that section, while it is in force, the alternative provisions of the relevant State or Territory law "have effect instead of (Subdivision P)".
71 Although the s 26A situation is, perhaps, less obvious, the result of a determination is essentially the same. A s 26A determination may extend to "each act included in a class of acts". Each act covered by the determination becomes "an approved exploration etc act". The significance of this circumstance is stated in s 26(2)(b): Subdivision P "does not apply to the extent that" the particular act is "an act determined in writing by the Commonwealth Minister to be an approved exploration etc act". It follows that a decision by the Minister to make a determination under s 26A in respect of a particular act or class of acts has the effect of excluding any act covered by the determination from the negotiation regime established by Subdivision P.
72 It seems to me that, in making a decision about the appropriate legal regime, the Minister is not concerned with the question whether there will in fact be a future act that complies with s 24MB(1), including with para (c). If there never is a future act that complies with that subsection, and falls within the category of acts stated in the determination, the Minister will have laboured in vain but his decision will not be invalid. If there is, there will already be in place a decision as to the legal regime applicable to that act.
73 I reject the applicant's arguments in respect of s 24MB(1)(c). The Minister's failure to consider this paragraph did not deprive him of jurisdiction to make the challenged determinations or lead to an invalid decision.
Relevance of uncommenced Queensland legislation
(i) Background
74 At paras 16-19 above I mentioned amendments to the Mineral Resources Act that were enacted, and assented to, before the decisions by the Commonwealth Minister to make the determinations, but were not then in force. There is no doubt the Minister took these provisions into account. As is apparent from the summary at para 20 above, each of the determinations described a permitted act partly by reference to one or other of Parts 13 to 17 of the Mineral Resources Act, none of which Parts commenced operation until 18 September 2000. Moreover, there are references in the Minister's statement of reasons to particular provisions of these Parts.
(ii) Submissions of applicant
75 In these circumstances, the question is whether the Commonwealth Minister was entitled to take the amendments into account in making his decisions. Counsel for the applicant argued he was not. They put two separate arguments.
76 The first argument was set out in the outline of submissions provided before the hearing. Counsel claimed that proceeding on the basis that the amendments to the Mineral Resources Act were in operation at the date of his decisions to make the determinations, "involves (the Commonwealth Minister) creating a fiction which flies in the face of the actual facts". They said "the fiction related to the time of legal commencement of the relevant provisions of the MRA"; the Commonwealth Minister "proceeded on the basis that these provisions had lawfully commenced when, in fact, they had not".
77 Counsel claimed the Commonwealth Minister was confronted with a "chicken or egg" dilemma; some of the provisions intended to be added by the amendments to the Mineral Resources Act depended for their application upon the existence of a s 26A or s 43 determination: for example, Mineral Resources Act ss 426(1)(b)(iii), 525(1)(b)(iii), 531(2)(b)(i) and (ii), 540(1)(b)(iii), 579(1)(c), 582(1)(b)(iii). Yet the Commonwealth Minister found it necessary to assume those provisions applied for the purpose of concluding it was appropriate to make the determinations.
78 Counsel's second point, in relation to the amendments, arises out of the form of the Native Title Act. The first condition stated in s 43(1) of that Act is that "a law of a State or Territory provides for" (counsel's emphasis) provisions alternative to those contained in Subdivision P of Division 3 of Part 2 of the Act. If the Commonwealth Minister makes a determination under the subsection "then, while the determination is in force, the alternative provisions have effect instead of this Subdivision while the determination is in force" (counsel's emphasis).
79 In their written submissions, counsel said:
"... the terms of the provision are significant in creating a jurisdictional requirement that the alternative State provisions be in a law which is in force when the relevant determination is made. First, the reference to `a law of State' is unequivocal and unambiguous. It does not refer to a proposed law or legislation which has been passed but not yet commenced. The phrase should be read literally as meaning a law which is in force and operating at the time the Minister makes the relevant determination. Secondly, the reference `provides for alternative provisions to those contained in this Subdivision' points in the same direction. The use of present tense strongly indicates that the requisite provision must be in a law of a State which is currently in force. Thirdly, the matters identified in sub-s 43(2) in respect of which the Minister needs to be satisfied in order for the determination to be made, are all expressed in the present tense. Finally, it can be inferred from the insertion of sub-s 43(3), which makes provision for revocation of a determination if `at any time the alternative provisions are amended so that no longer comply with subsection (2)', that it was intended that those alternative provisions would be in force and operating at the time when the determination is initially made."
80 Counsel accepted the Minister's power to make a determination under s 26A is expressed in different terms from those used in s 43. However, they submitted:
"... their effect is the same in requiring, as a condition precedent to the exercise of those power [sic], that the relevant State provisions authorising the relevant acts are in force when the particular determination is made. So much is implicit in the nature of the conditions in respect of which the Minister must be satisfied for him to make a determination under s 26A. In particular, the First, Second and Third Conditions all require the Minister to assess either the legal or likely practical effect of the carrying out of the relevant acts. It is difficult to see how that assessment can meaningfully be carried out unless the legislation authorising those acts is in force at the time the Minister concludes that he is authorised to make the determination. Otherwise, the assessment which has to be carried out will be entirely speculative and/or hypothetical."
(iii) Submissions of Commonwealth Minister
81 Counsel for the Commonwealth Minister made a number of points in response to these arguments. They said there is no "chicken or egg" situation because the scheme of the cited additions to the Mineral Resources Act is that a particular portion of that Act, either a whole Part or a Division of a Part, is to apply to a particular type of act - for example, the granting of a prospecting permit under Part 13 or the renewal of an exploration permit under Division 5 of Part 15 - only if there is a relevant s 26A or s 43 determination. Counsel said the Commonwealth Minister was therefore entitled to proceed, and did proceed, on the basis that it would be his determination which triggered the application of the relevant portion of the Mineral Resources Act. Counsel argued the scheme of the amendments to the Mineral Resources Act was necessary as a matter of constitutional law; "until a determination under s 26A is in place, no State or Territory could provide procedures for granting low impact mining rights in place of those conferred by Subdivision P": see Constitution s 109.
82 In relation to the circumstance that the Commonwealth Minister considered the Queensland amendments before they became law, counsel said:
"... there is no rational basis for the Applicant's insistence that it is not open to the [Commonwealth Minister] to consider a State or Territory law which is not currently operative. The enactment of the relevant MR Act provisions in advance, to commence on the gazettal of s 26A determinations, permitted an unbroken transition from the Commonwealth regime to the State regime (and was the only way to achieve an unbroken transition); offered certainty to stakeholders; and allowed the [Commonwealth Minister] to consider whether the s 26A conditions were met in the context of a fixed legislative scheme."
(iv) Conclusions
83 Counsel for the Commonwealth Minister are correct in saying there is no "chicken or egg" problem. Only a few of the additions to the Mineral Resources Act depend, for their operation, on the existence of a determination under s 26A or s 43. To the extent they do, the Commonwealth Minister was not constrained. He was able to approach his task in the knowledge that, unless he made an appropriate determination, those provisions would have no effective operation.
84 A curious feature of this case is that, subject to one qualification, the Commonwealth Minister's determinations read as if the new Parts 12 to 19 of the Mineral Resources Act, and the amendments made to earlier Parts of that Act, were already in force. Each of the s 26A determinations refers to a type of mining tenement "to which (some portion of the new Parts) applies". Each of the s 43 determinations is a determination that stipulated "laws of Queensland ... comply with" s 43(2) of the Native Title Act. The present tense is used throughout.
85 However, and this is the qualification I mentioned, each of the s 43 determinations bears the following footnote:
"Provisions of the Mineral Resources Act 1989 mentioned in this Determination include provisions that are amended or inserted by as yet uncommenced provisions of the Native Title (Queensland) State Provisions Amendment Act (No. 2) 1998, the Land and Resources Tribunal Act 1999 and the Native Title (Queensland) State Provisions Amendment Act 1999."
So it is obvious the Commonwealth Minister realised that some of the provisions upon which he was relying, under s 43, as an alternative to Subdivision P were not yet in operation. Although the Minister failed to insert a similar footnote on any of the s 26A determinations, he made those determinations on the same day as the s 43 determinations; so he must be taken to have appreciated that provisions referred to in the s 26A declarations, also, were not yet operative.
86 Despite the use of the present tense throughout the determinations, but having regard to the footnotes to each of the s 43 determinations, I do not think it can properly be said the Commonwealth Minister created a "fiction" that particular Mineral Resources Act amendments were already in force. The Commonwealth Minister knew they were not. He said so in the s 43 determinations. The most likely explanation of the use of the present tense is that, when he made the determinations, the Commonwealth Minister already intended they would not come into operation before the commencement of the Queensland amendments. Presumably he reasoned that, by the time the determinations spoke, it would be correct to say the new Queensland provisions applied.
87 The real question in respect of this aspect of the case, as it seems to me, is whether it was open to the Commonwealth Minister, as a matter of law, to make a determination that depended on State provisions that were not yet in force.
88 In relation to the s 43 determinations, the question is whether provisions that have not yet commenced may be regarded as "a law of a State" within the meaning of s 43(1) of the Native Title Act. Counsel for the Commonwealth Minister argued they may. They cited a statement in MacAdam and Smith, Statutes, Rules and Examples (Butterworths, second ed.) at 85:
"Once a Bill for an Act has been passed by the relevant house or houses of Parliament and assented to by the Governor, Governor-General or Her Majesty as the case may be, an Act comes into existence."
The learned authors go on to discuss the "question which remains": "when does an Act commence its operation?"
89 It may be possible to describe a Bill that has been passed by Parliament, and assented to on behalf of the Crown, as an "Act"; but, if so, it is an Act in escrow. Until the Act commences operation, it cannot be regarded as having existence, for any purpose affecting the legal position of parties: see per Slesser LJ in Croxford v Universal Insurance Company Limited [1936] 2 KB 253 at 270. This is so even if the date of future commencement is known, as in Croxford. A fortiori where commencement depends upon the making of a proclamation, and this has not occurred. Where statutory provisions are not to commence until a date to be proclaimed (as was the position in relation to some of the provisions noted in the footnote to the s 43 determinations), there is always a possibility there will never be a relevant proclamation; in which case the new provisions will never come into force.
90 The question that arises, in relation to s 43(1) of the Native Title Act, is not the abstract question whether inoperative statutory provisions may appropriately be called a "law". Contrary to a submission by counsel for the Commonwealth Minister that it is an "inherent characteristic" of the scheme established by s 43 that "an alternative State or Territory regime, replacing the Subdivision P right to negotiate, will not be operative until the s 43 determination is made, the pre-condition in s 43(1) to Ministerial action is that the "law ... provides for alternative provisions". The subsection contemplates a situation where a State or Territory law is in operation, subject to any inconsistency with other provisions of the Native Title Act. A statute, or statutory provision, that has not yet commenced cannot provide for anything.
91 The final clause of s 43(1) confirms that Parliament contemplated an operative State or Territory law. Once the Commonwealth determination comes into force, "the alternative provisions have effect instead of this Subdivision". The determination comes into force on gazettal, unless some other date is specified in the determination: see Acts Interpretation Act ss 46A and 48. Section 43(1) of the Native Title Act assumes the State law will, at that time, be available to "have effect instead of (Subdivision P)". There can only be certainty about that matter, especially given that procuring the commencement of State legislation is a matter for State functionaries rather than the Commonwealth Minister, if the State legislation is already in operation when the s 43 determination is made.
92 Contrary to the submission of counsel for the Commonwealth Minister, this view of the situation does not cause any constitutional difficulty. Although s 109 of the Constitution speaks about a State law that is inconsistent with a Commonwealth law being "invalid", it is well-established that s 109 does not invalidate the State law ab initio; s 109 merely renders the State law inoperative during the period of inconsistency: see Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268 at 274, 278, 283. If a State law has commenced, it may be rendered ineffective by s 109 until inconsistency with the Native Title Act is removed by commencement of a s 43 determination; but during the period of ineffectiveness it remains in existence. Upon the making of the s 43 determination, it automatically takes full effect.
93 Another possibility is for the operation of the State law itself to be conditioned on the existence of a s 43 determination. This course was in fact adopted in relation to several of the new provisions of the Mineral Resources Act, as noted in para 77 above. The drafter adopted the device of imposing conditions for the application of the new provisions, which conditions included the existence of a relevant determination under s 43 (or s 26A) of the Native Title Act.
94 The position in relation to the s 26A declarations is different. Unlike s 43(1), s 26A(1) is not, in terms, conditioned on there being a law of the relevant State or Territory that provides an alternative regime. As noted in para 80 above, counsel for the applicant argued this condition is implicit in the first, second and third conditions, expressed in subss (2), (3) and (5) of s 26A. However, this is clearly not so in relation to the first and third conditions. The position in relation to the second condition is more debateable.
95 The "second condition", prescribed by s 26A(3), is that "the Minister is satisfied that the act or acts are unlikely to have a significant impact on the particular land or waters concerned". Counsel's argument is that, in the absence of an operative State legal regime providing an alternative to the protective provisions of Subdivision P, the Minister could never be so satisfied.
96 I do not accept that argument. Subdivision P is concerned with the right to negotiate. The exercise of that right may result in the act having less impact on the relevant land and waters than it would otherwise have had. But negotiations may take place outside a State legal regime; and negotiations within a State legal regime will not necessarily eliminate the possibility of the mining activity having a significant impact on the subject land or waters.
97 In considering whether he or she is satisfied concerning the second condition, it is no doubt relevant for the Minister to consider whether there exists any operative State law providing for consultation and negotiation, and the terms thereof. However, it seems to me the existence of such a law is not a precondition to satisfaction under s 26A(3).
98 As the question for the Minister under s 26A(3) is the likely impact of the act or acts, at a future date, it must also be relevant for the Minister to take into account the nature of any protective legal regime that is likely then to apply. The weight to be given to that factor will, no doubt, be affected by the Minister's degree of confidence that the regime will, in fact, then apply. But weight is a matter for the Minister.
99 I reject the applicant's argument that the s 26A determinations are invalidated by the circumstance that the Queensland amending provisions were not in operation when they were made. However, I think the Minister erred in law, in this connection, in relation to the s 43 determinations.
100 I will consider later whether this conclusion affords the applicant a remedy under s 39B of the Judiciary Act.
Whether provisions in three statutes may be "a law of a State"
101 At paras 90-91 above, I expressed the view that the words "a law of a State or Territory" refer to presently operative law, not provisions contained in an Act that has yet to come into operation. Another question, in relation to those words, is whether the reference is to provisions entirely contained within one statute or whether they may cover provisions spread over two or more statutes.
102 The four subject s 43 determinations (the Minister's fourth, fifth, sixth and seventh determinations) each identify the relevant Queensland law as being particular provisions of the Mineral Resources Act, the Land and Resources Tribunal Act 1999 and the Supreme Court of Queensland Act 1991. Counsel for the applicant submitted the Minister erred in treating provisions contained in three separate statutes as falling within the description "a law of a State". They contrast this phrase with that used in s 43A of the Act: "a law or laws of a State". Counsel argued this contrast indicates that the choice of the phrase "a law of a State" was deliberate. They contended it is "consistent with the underlying rationale to the regime under section 43". Counsel said:
"The effect of a section 43 determination is that the relevant alternative provisions have effect instead of Subdivision P of the NTA. Since Subdivision P is to be found in a single Act of the Commonwealth Parliament, it is entirely logical that the Commonwealth Parliament insisted that the Subdivision should only be displaced in circumstances where the relevant alternative provisions are also contained in a single Act. Such an approach is rational and understandable in providing maximum certainty and simplicity in the context of native title law, and in giving effect to the Preamble and objects of the NTA."
103 Counsel for the Minister responded to this submission in two ways. First, they said there is nothing in the Native Title Act, whether in the preamble or s 3 or elsewhere, that suggests that certainty and simplicity may be achieved only by collecting the relevant provisions into a single statute; to require this would be to "force the States' and Territories' mining regimes into a common (single-law) mould - in a context where, at the time of the 1998 amendments, many of those regimes were based on several separate but connected pieces of legislation".
104 Counsel's primary argument, however, rests on s 23(b) of the Acts Interpretation Act. That paragraph provides that, in any Act unless the contrary intention appears, "words in the singular number include the plural and words in the plural number include the singular". Accordingly, counsel argued, the word "law" includes "laws".
105 The contrast between the opening words of s 43(1) and those of s 43A(1) is puzzling. Perhaps it is attributable to the fact that s 43 was contained in the original Act whilst s 43A was introduced by the 1998 amending Act. As against that, the 1998 amendments revised s 43; indeed the original section was repealed and a new section substituted. However, whatever the explanation for the difference in wording, s 23(b) must be applied. There is no express indication of an intention to exclude the rule embodied in that paragraph and I see no implied exclusion, either arising out of particular words in the statute or policy considerations. Although it is true that "Subdivision P is to be found in a single Act of the Commonwealth Parliament", that Subdivision is not self-contained. It is meaningful only in the context of State and Territory laws, especially laws concerning mining rights, to which it makes frequent references.
106 If the Minister's s 43 determinations were otherwise valid, they would not be rendered invalid by the circumstance that they referred to provisions contained in three separate State statutes.
The reference to "particular" land or waters
(i) Background
107 The "second condition" of which the Minister must be satisfied, before making a s 26A declaration, is that "the act or acts are unlikely to have a significant impact on the particular land or waters concerned". What is the significance, in this context, of the word "particular"?
108 The question arises in the present case because of the width of the Commonwealth Minister's s 26A determinations. The terms of those determinations are noted at para 20 above. None of the determinations expressly identified the land or waters to which it related. In each case, the only limitation on the application of the determination was implied. As each determination approved the grant of a particular type of mining interest under the Queensland Mineral Resources Act, the determination applied only to land in Queensland. However, there was no further limitation.
109 It is apparent from his statements of reasons that the Commonwealth Minister understood he was making Queensland-wide determinations. At paras 60-61 of his statement of reasons in relation to the first (prospecting permit) determination, the Minister said:
"The Explanatory Memorandum to the Native Title Amendment Bill 1997 provides that `the Minister may make a determination under section 26A for a class of future acts, for instance all exploration licences given under a particular State or Territory law'. It also provides that, `where the Minister's determination is made for a class of acts, such as the granting of exploration titles under legislation, the second condition ie the condition that I must be satisfied that the act or acts are unlikely to have a significant impact on the land or waters concerned] may be met, for instance, if exploration licences of the relevant kind impose sufficient limitations on the removal of earth.' Parliament clearly intended that a section 26A determination could be made in respect of all acts in a class of acts across a particular State or Territory.To give effect to the intention of the NTA, I must therefore have the capacity to make an assessment of the acts as a class, rather than be required to assess the effect of each individual act within the class of acts to be covered by the determination. The provisions of the MRA relating to low impact prospecting permits apply to all `non-exclusive land' in Queensland. Therefore, the particular land or waters concerned could potentially include all types of land in the State where native title has not been extinguished on which such grants can, within the terms of the MRA, be made." (Footnotes omitted)
The Minister made similar comments in his statements of reasons respecting the second determination (paras 62-63) and the third determination (paras 69-70).
110 In relation to each determination, the Commonwealth Minister went on to note that the term "significant impact" is not defined in either the Native Title Act or the Mineral Resources Act. The Minister thought "it was not necessarily appropriate to apply judicial interpretations of the phrase", where it has been used in non-native title legislation, but to apply a "common sense interpretation".
111 In each statement of reasons the Minister went on to describe the rights provided, under the Queensland legislation, to the holders of the relevant mining interest. He referred to particular provisions of the Mineral Resources Act and to information concerning usual practice provided by unidentified "Queensland officials".
112 In each statement of reasons concerning a s 26A determination, the Minister said "Queensland officials pointed out that there were many environmentally sensitive areas in Queensland where (the relevant mining activity) was not allowed". He referred to land dedicated as a national park or conservation park. The Minister then said:
"In addition, there are State and Commonwealth Acts that operate either as a general protective regime or to protect land with particular attributes in particular circumstances. Each Act may not be applicable to every grant of a tenement, but the existence of such legislation further diminishes the likelihood of a grant having a significant impact on the land or waters concerned."
113 The Minister referred to the Queensland Environmental Protection Act 1994 and the regulations made thereunder which "regulate environmental protection in Queensland and stipulate assessment and approvals processes that proponents must meet". He did not say whether the activities permitted by the relevant mining interest would be caught by those provisions. He also referred to various location-specific provisions such as the Wet Tropics World Heritage Protection and Management Act 1993, and Commonwealth and Queensland statutes concerning heritage protection.
114 After referring to some other matters, the Minister set out this summary of his view:
"A low impact prospecting permit is subject to a condition that, to the extent that it is granted over non-exclusive land, land mining is not permitted. The MRA provides a number of mechanisms which will allow this condition to be enforced. A low impact prospecting permit only allows the permit holder to `prospect' (with or without pegging), and given the narrow definition of the term `prospect' in the MRA, activities conducted under a low impact prospecting permit are unlikely to have a significant impact on the land or waters concerned."
115 The Minister concluded, in relation to the first determination:
"On this basis, I formed the view that the condition in subsection 26A(3) of the NTA that the act must be unlikely to have a significant impact on the relevant land or waters is satisfied in relation to a low impact prospecting permits granted under parts 3 and 13 and (where relevant) part 19 of the MRA."
116 The Minister's conclusions in relation to the second and third determinations were expressed in similar terms.
(ii) Submissions of applicant
117 Counsel for the applicant submitted it was erroneous in law for the Commonwealth Minister to proceed on the basis that s 26A empowered him to make a determination in respect of an act or class of acts across the entire State of Queensland. In their outline of submissions, they argued:
"The Minister's approach makes a nonsense of the requirement in the Second Condition that he has to be satisfied that the act or acts the subject of a Section 26A determination are unlikely to have a significant impact on `the particular land or waters concerned' (emphasis added). The express reference to `particular land or waters concerned' imposes an obligation on the Minister to direct his or her attention to the specific land or waters to which the relevant act or acts relate in order to assess the likely impact on that land or waters of the act or acts involved in view of the diversity of the relevant land or waters concerned in a State as geographically vast and varied as Queensland. A purported exercise of power under Section 26A is invalid unless the Minister conducts an appropriate analysis which complies with the legislative requirement that he assess the likely impact of the acts on the particular land or waters concerned. That necessitates an analysis which recognises the individual characteristics of the particular land or waters. Such an analysis will rarely, if ever, be feasible on a State-wide basis. In any event, the critical point is that the Respondent did not conduct a proper analysis here in making each of the Section 26A Determinations on a whole of State basis.The presence in Sub-section 26A(3) of the word `particular' (as is also the case with Sub-section 24LA(1)) is to be contrasted with the absence of that word elsewhere in the NTA where there are references to `land or waters concerned' eg Section 237. Presumably, the Parliament chose deliberately to insert the word in the Second Condition with a view to highlighting the need to focus on the individual land or waters concerned for the purposes of Section 26A."
118 Counsel said "particular" should be given its ordinary meaning and cited two Macquarie Dictionary definitions:
"1. pertaining to some one person, thing, group, class, occasion, etc., rather than to others or all; special, not general; one's particular interests. 2. being a definite one, individual, or single or considered separately; each particular item."
119 Counsel submitted the Minister was wrong to resort to the Explanatory Memorandum. They said the relevant words were clear and unambiguous. They referred to the words of Mason CJ, Wilson and Dawson JJ in Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518:
"[The Second Reading Speech by the Minister] quite unambiguously asserts that Part III relates to deserters and absentees whether or not they are from a visiting force. But this is [sic] of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of the Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restricted of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate [sic] may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law".
120 Although Bolton was concerned with liberty of the individual, counsel made the point, in their written outline, that the Native Title Act is remedial or beneficial legislation. They compared it with the Aboriginal Land Rights (Northern Territory) Act 1976, in respect of which a Full Court (Northrop, Hill and O'Loughlin JJ) said in Jungarrayi v Olney (1992) 34 FCR 496 at 506:
"This then is a strong example of beneficial legislation which should be construed liberally in favour of the person or class of persons for whose benefit the legislation was enacted. It being clear from the authorities that the word `likely' is one that is capable of a number of different meanings, any consequential ambiguity should be resolved by a beneficial construction."
The Full Court applied those remarks to the construction of a provision (s 50(2B)) restricting the rights of Aboriginal claimants, with the effect that the restrictive provision was narrowly construed.
121 Jungarrayi was applied by French J in a case arising under the Native Title Act, Smith v Western Australia [2001] FCA 19. At para 23 his Honour said:
"The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed."
122 Counsel for the applicant also referred to my comment in Telstra Corporation Limited v Hurstville City Council [2000] FCA 1887; 105 FCR 322 at para 142:
"Section 15AB (of the Acts Interpretation Act) allows resort to extrinsic material (including an explanatory memorandum: see s 15AB(2)(a)) for specific purposes, not generally. Second, construction of a statute by reference to the explanatory memorandum would be to allow the explanatory memorandum to supplant the statute, not merely to provide a confirmation of its meaning or to resolve an ambiguity, obscurity or apparent absurdity." (Original emphasis)
123 Counsel's written outline went on:
"By construing the Second Condition by reference to the Explanatory Memorandum and not by reference to the terms of the provision itself, the Respondent was led into error in the approach he adopted in respect of the Second Condition. The Respondent simply glossed over the requirement that he address the particular land or waters concerned, preferring to adopt a broad-brush approach which purportedly focused at a general level on all types of land in Queensland but without descending into any analysis of the relevant characteristics or sensitivities of the particular land or waters concerned.The language of the Second Condition, especially the use of the future tense within it, required the Respondent to engage in a predictive assessment of the likely actual consequences of the activities carried out pursuant to the grant of the relevant licence or permit in respect of the particular land or waters concerned ...
It goes without saying that there is a wide diversity of land or waters in the State of Queensland upon which the relevant activities could be conducted. Some of that land or waters is of particular cultural or heritage sensitivity to Aboriginal people, a matter which was drawn to the Respondent's specific attention ...
The Applicant submits that it was incumbent on the Respondent to undertake a proper predictive assessment of the likely actual consequences of the relevant activities on all and any particular land or waters upon which the relevant activities could be conducted, including land or waters which were especially sensitive or vulnerable, even to so-called low impact activities. The Respondent did not carry out that assessment.
Instead, the Respondent concluded that the acts were unlikely to have a significant impact because of various general considerations which he took into account, such as:
(a) the alleged low impact nature of the activities permitted under the relevant permits or licences;
(b) the operation of prescribed conditions and the power to impose additional conditions on such permits or licences;
(c) the enforcement of such conditions;
(d) legislative restrictions on carrying out activities in some parts of Queensland; and
(e) the requirement of consultation as a means of minimising impact in a particular case.
While it is not contended that those considerations were irrelevant, it is submitted that the Respondent failed to carry out the legal task required of him under Subsection 26A(3) because he did not apply those considerations to the particular land or waters concerned. Rather, those general considerations were applied to land generally." (Original emphasis)
124 Counsel said the Minister's legal error "is especially manifest" in his analysis of legislative restrictions. The Minister noted, in each statement of reasons, that the provisions he cited were not "applicable to every grant of a tenement" (see para 112 above), yet he took them into account in relation to every parcel of land that might be affected by the act to which he was granting approval.
125 Counsel mentioned that submissions put to the Commonwealth Minister pointed out the potentially invasive nature of some of the activities permitted to holders of the mining interests with which the Minister was concerned. Officers of the Native Title Division of the Attorney-General's Department noted these submissions and told Queensland officials, in a telephone conference on 15 February 2001, that "[n]o information about the number of acts, the cumulative effect or the characteristics of the particular land or waters is currently before the AG". According to a note of that conference taken by an officer of the Native Title Division, the Queensland officers responded that "[n]umbers do not equate to low impact". The Queensland officers also stated a single drill pad on a sacred site would have a high impact. Counsel said this response "should have alerted the Respondent and his advisers to the need to address properly this significant problem and to consider with thoroughness and care the likely impact of the activities on the `particular land or waters concerned', including the particular characteristics and sensitivity of that land and waters".
126 Counsel for the applicant referred to the nature of the acts authorised by the three s 26A determinations. The first determination approves the "grant of a prospecting permit under Part 3 of the Mineral Resources Act". However, a prospecting permit may be granted only for a mining district or for a single lot, or for two or more adjoining lots owned by the same person: see s 14(1) of the Mineral Resources Act. Counsel said:
"Mining districts do not cover the entire State of Queensland and it can be assumed that the entire State is not comprised of lots owned by the same person."
127 The second determination relates to the grant, renewal or variation of conditions of an exploration permit under Part 5 of the Mineral Resources Act. However, exploration permits relate only to specified sub-blocks: see s 127 of the Mineral Resources Act.
128 The third determination concerns mineral development licences under Part 6 of the Mineral Resources Act. They relate only to specified parcels of land: see s 183(1)(d) and (e) of the Mineral Resources Act.
129 Counsel argued:
"These limitations imposed by the MRA were plainly relevant to the Respondent's task in considering whether the Second Condition was met because they were material to the identification of the `particular land or waters concerned' which could be affected by the activity carried out under a grant authorised by the MRA."
130 Counsel submitted the Commonwealth Minister approached "the whole issue from an impermissible level of generality and without any recognition of the significance of the fact that each of the relevant permits or licences could only be granted in respect of particular geographic areas of land which, by definition, could not encompass all land in the State".
(iii) Submissions of Commonwealth Minister
131 Counsel for the Commonwealth Minister argued that a s 26A determination may be made "for all acts in a class of acts in respect of all relevant land in Queensland". They pointed out that s 26A(1) empowers the Commonwealth Minister to determine "that an act, or that each act included in a class of acts, is an approved exploration etc act". They said there is "no limitation on the criteria by which the `class' of acts can be described other than the requirement that the act meet the conditions specified in ss 26A(2), (3), (5) and (6)". They added there is no geographic limitation on the class of acts, "other than the implicit requirement that the land be land in relation to which native title exists". In this context, they argued, the phrase "the particular land or waters concerned" in s 26A(3) "is a reference to the land which will be affected by the relevant future acts - that is, the acts in the `class of acts' referred to in s 26A(1). Once that class of acts is identified, the `particular land or waters concerned' will readily be identifiable".
132 Counsel said, in relation to the three s 26A determinations:
"the class of acts was defined in the MR Act by, amongst other things, the land or waters that could be affected by acts in the class, namely -(a) `non-exclusive land' in Queensland - a term defined in s 422 of the MR Act as `land over which native title has not been extinguished, but only to the extent that the land is a place mentioned in section 26(3) of the Commonwealth Native Title Act'; and
(b) land that is not a `protected area' as defined in s 5 of the MR Act (that is, not a national park or conservation park); and
(c) land in respect of which a low impact mining right may be granted."
133 Counsel argued this interpretation of s 26A(3) is consistent with the extrinsic material. They cited a number of references, including the Second Reading Speeches of the Attorney-General in relation to the Native Title Amendment Bill 1997 (4 September 1997) and the Native Title Amendment Bill [No 2] 1997 (9 March 1998) and the Commonwealth Government Submission concerning the first Bill to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund (16 October 1997).
134 None of those references carries the matter any further; none casts light on the meaning of "particular land or waters".
135 However, the Explanatory Memorandum to the first Bill is arguably more helpful. Paragraph 19.12 of that document says:
"The Commonwealth Minister can only determine that a future act is an approved exploration etc act if five conditions are met. However, the Minister may make such a determination for a class of future acts, for instance all exploration licences given under a particular State or Territory law. These conditions are set out below."
In relation to the second condition, the Explanatory Memorandum states:
"19.14 The Commonwealth Minister must consider that the act, or those in the class, are unlikely to have a significant impact on the land or waters that will be affected by the act or acts. To remove doubt, the Bill specifically provides that the fact that drilling may be authorised does not prevent the act meeting the condition.
Where the Minister's determination is made for a class of acts, such as the granting of exploration titles under legislation, the second condition may be met, for instance, if exploration licences of the relevant kind impose sufficient limitations on the removal of earth."
136 It will be noted that para 19.14 of the Explanatory Memorandum refers to "the land or waters", not "the particular land or waters". This circumstance caused me to inquire whether the word "particular" had appeared in the Government's original Bill, or whether it was introduced by a Senate amendment. Counsel checked the position and found it was in the original Bill. So counsel for the Minister are justified in claiming that, notwithstanding the word "particular", the Government contemplated the possibility of a Statewide s 26A determination.
137 Counsel for the Commonwealth Minister said this is not a case of a party seeking to use an Explanatory Memorandum to supplant the clear and unambiguous terms of an Act, as in Telstra Corporation v Hurstville City Council, but a use in accordance with the statement of Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 at 408:
"It is well settled that a common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses `context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy."
138 Counsel went on to say that, if the applicant's construction of s 26A were to be adopted, "the operation of s 26A and the achievement of its objective would be frustrated". The argument is that there would be a significant affect on the class of acts in respect of which a s 26A(1) determination could be made. It was suggested the result would be that devolution to States and Territories would be frustrated, States and Territories would be inhibited in establishing "alternatives to the Subdivision P right to negotiate in relation to the grant of mining rights for the purpose of exploration" and, therefore, "the purposes of streamlining the right to negotiate process and reducing delay in relation to low impact activities would also be defeated."
139 In their written outline, counsel for the Commonwealth Minister said:
"The words used in s 26A to identify the acts that may be the subject of a s 26A determination are to be construed in a context where one of the express purposes of the 1998 amendments was to allow the States and Territories to manage the native title aspects of granting mining tenements within their own jurisdiction by providing a mechanism for the Commonwealth regime of procedural rights (provided for in Subdivision P) to be replaced by State and Territory regimes. Thus, the 2nd Reading Speech in the House of Representatives stated that the Bill `streamlines the right to negotiate process, so reducing unnecessary delay; and, where appropriate, devolves greater responsibility to the states and territories to deal with these matters'. The Commonwealth Government's submission to a Parliamentary Joint Committee on the Bill also referred to s 26A as allowing the States and Territories to develop `schemes' for approval by the Commonwealth minister, which schemes would apply `instead of the right to negotiate'. The statutory construction for which the Applicant contends can readily be rejected when the Act is construed in that context: see s 15AA of the Acts Interpretation Act 1901.Just as Subdivision P has application across Australia, the Act should be construed so as to enable the Minister, under s 26A, to determine a class of acts across the relevant State or Territory."
140 In submissions in reply, counsel for the Minister added that "the word `particular' cannot have the effect for which the Applicant contends, because s 26A offers no criteria by reference to which the Minister could identify the specific land or waters."
(iv) Conclusions
141 The first question that arises in relation to s 26A(3) concerns the meaning of "significant impact". There are two points.
142 First, as the Minister pointed out in each of his statement of reasons concerning a s 26A determination, the act the subject of his determination could not, itself, have an impact on land or waters. The "approved exploration etc act" is the creation or variation of a particular mining right: see s 26A(2). The creation of that right has legal consequences but cannot itself affect land or waters. Taking what he called "a common sense approach", the Minister interpreted s 26A(3) "to mean that I must be satisfied that activities authorised by such a grant are unlikely to have a significant impact on the particular land or waters concerned". This approach was not criticised by counsel in this case. I agree with it.
143 Second, the Minister thought what had to be considered was the likely physical impact, on the subject land or waters, of acts performed pursuant to the particular mining interest. The Minister did not attempt to calculate the likely impact of those acts upon the enjoyment or exercise of any holders' native title rights. Once again, this approach was uncontroversial. Once again, I agree with it. Section 26A(3) speaks of "impact on the particular land or waters", not about impact on native title rights and interests.
144 The question raised by s 26A(3) of the Native Title Act is similar to that involved in a determination under s 237(c) of the Act: whether an act "is not likely to involve major disturbance to any land or waters concerned". Those words were discussed in Dann v Western Australia (1997) 74 FCR 391. I apply to s 26A(3) the comments I made in that case at 394-395.
145 The more difficult construction problem in s 26A(3) arises out of the use of the word "particular". None of the extrinsic materials explains why this word was included in the subsection, or what degree of particularity was intended.
146 I accept the 1997 Bill was intended to streamline the right to negotiate process and to delegate responsibility to the States and Territories in relation to that subject. That was made clear by the Attorney-General, in para 42 of his Second Reading Speech on 4 September 1997 when he said:
"The government proposes to remove the right to negotiate where it is inappropriate because of the nature of the rights to be granted, the minimal impact on the land, or the limited native title rights that can exist. However, the basic procedural rights of native title holders are protected. The bill also streamlines the right to negotiate process, so reducing unnecessary delay; and, where appropriate, devolves greater responsibility to the states and territories to deal with these matters."
147 It does not follow that s 26A must be interpreted in the broad manner suggested by counsel for the Commonwealth Minister. That interpretation seems to attribute the same meaning to "particular land or waters" as it would have if "particular" did not appear. Even if s 26A(3) is read as requiring, in all cases, identification of the relevant land, to a greater degree of particularity than by reference only to an identified State or Territory, the objective stated by the Attorney-General would still be attained.
148 As CIC Insurance makes clear, an Explanatory Memorandum may be used to ascertain the mischief that a statute is intended to cure. It may also be used to confirm the meaning of a provision; or to determine its meaning, when the provision is ambiguous or obscure or the ordinary meaning leads to a result that is manifestly absurd or unreasonable: see s 15AB of the Acts Interpretation Act. However, an Explanatory Memorandum is not a statute. In my opinion, it ought never be allowed to supplant a statutory provision that is unambiguous, and whose ordinary meaning does not lead to a result that is manifestly absurd or unreasonable.
149 In the present case, the statute is ambiguous as to the degree of particularity required by the phrase "particular land or waters". It follows that, although the Explanatory Memorandum may not be used in such a manner as effectively to omit "particular" from s 26A(3), it may be used as an indication that it is not necessarily essential for the Minister to identify, or be able to identify, each parcel of land to which the proposed determination would apply. The Explanatory Memorandum seems to envisage the possibility of the Minister being able to say that, having regard to the nature of the mining activities that may be undertaken pursuant to a particular mining right, the grant of such a right is unlikely to have a significant impact upon even the most environmentally sensitive site.
150 If this approach is employed, it is, of course, necessary for the Minister to assess the effect of an approved exploration etc act on a "worst-case" basis; that is, by assuming the possibility of the relevant act or acts occurring on land or waters that have the greatest sensitivity to environmental degradation. If the Minister can be satisfied that the proposed approved exploration etc act or acts are unlikely to have a significant impact on even that type of land or waters, he or she would be entitled to be satisfied the act or acts are unlikely to have a significant impact on any particular land or waters out of the whole.
151 The Minister sought to adopt this approach in the present case. He did not attempt to identify particular land or waters that might be the subject of the relevant rights to mine. He concentrated on the nature of the activities that would be permissible under each right to mine. For example, in his statement of reasons concerning the first determination, relating to low impact prospecting permits, he said:
"63 Subsection 26A(3) of the NTA requires that the grant of the permit is `unlikely to have a significant impact' on the particular land or waters concerned. A low impact prospecting permit only allows the permit holder to `prospect' (with or without pegging). Given the definition of `prospect', any activities conducted under a permit to prospect will be unlikely to have significant impact on the land. A low impact prospecting permit would not authorise drilling, nor the use of machinery or explosives. Prospecting only allows the use of hand held implements for the limited purpose of sampling in order to determine the existence, quality and quantity of minerals on, in or under land. Prospecting does not involve significant digging or excavation.64 Queensland officials advised that, in practice, most prospecting under such permits involves little more than surface inspection of outcrops, with occasional non-intrusive chip samples being taken. Hand held implements used for sampling purposes while prospecting principally are geological hammers, picks and shovels (used to take samples of alluvium and soil) and sieves to concentrate samples. Prospecting under these permits might also sometimes involve panning of alluvium in streams. Hand held electronic metal detectors might also be used to locate potential gold bearing alluvium through the testing of electronic responses by shallow spot hand excavations to a depth of about 0.5m.
65 The holder of a prospecting permit must ensure that all excavations are filled in at the conclusion of any activity on the permit area except where the holder applies for a mining claim or lease over any part of the land, in which case the excavations need only be filled in if the application is refused.
66 Prospecting permits are subject to such conditions that the mining registrar from time to time imposes. This includes imposing a condition that prevents the holder from entering land for the purposes of hand mining."
I have omitted footnote references.
152 The Minister went on to point out that, if the Mining Registrar exercised the power to vary a condition in such a way as to permit hand mining, this would create a new "right to mine" to which Part 13 of the Mineral Resources Act would not apply; accordingly, the grant of such a right would be subject to the right to negotiate under the Native Title Act.
153 The Minister thought it material to consider the enforceability of the permit provision excluding hand-mining on non-exclusive land; that is, land over which native title has not been extinguished: see s 422 of the Mineral Resources Act. He pointed out the "owner" of land may report to the Mining Registrar an apparent breach of a condition of a prospecting permit; the Mining Registrar must investigate the report and advise the owner of any consequential action. For this limited purpose, the word "owner" includes a registered native title body corporate or registered native title claimant: see s 10A(3) of the Mineral Resources Act. The Minister detailed the sanctions for violations of permit conditions.
154 One aspect of the Minister's reasoning is open to criticism. If one adopts a "worst-case" approach, it could only be relevant to say mining is not allowed in "many environmentally sensitive areas in Queensland" (national parks and conservation parks: see para 112 above) if there were no areas of equal (or superior) environmental sensitivity outside national parks and conservation parks. The Minister had no evidence to that effect. Nor is it obviously the case. In Queensland, as in other States and Territories, national parks and other protected areas comprise only a tiny proportion of the total land area. As is well known, for a variety of reasons (including historical, political and financial reasons), many environmentally sensitive areas are privately owned or devoted to a public use other than as a national park or conservation park. If the Minister is to be taken as saying areas outside national parks and conservation parks could not be regarded as "environmentally sensitive areas", so as to be vulnerable to significant impact from mining activities, there would be a major difficulty about the validity of his determinations; he would have rested a crucial part of his reasoning upon a factual basis that was unsupported by evidence.
155 However, I do not think the Minister said, or acted on the assumption, that areas outside national parks and conservation parks were not able to be regarded as environmentally sensitive. He said many environmentally sensitive areas were in parks; thereby recognising others were not. In the summary of his opinion (in para 85 of his statement of reasons, quoted at para 114 above) the Minister referred to the matter of impact on any land. He went on (in para 86 of his statement of reasons, quoted at para 115 above) to say: "On this basis, I formed the view that the condition in subsection 26A(3) of the NTA ... is satisfied in relation to ... low impact prospecting permits."
156 Accordingly, the criticism I make of the Minister's reference to many environmentally sensitive areas being in national parks or conservation parks is, not that this was an error of law or a factual finding unsupported by evidence, but simply that it was irrelevant. On a "worst-case" approach, it was necessary to consider environmentally sensitive land that was without legal protection, rather than sensitive protected land.
157 It appears from the statements of reasons that the Minister adopted a similar approach in relation to his second determination (concerning low impact exploration permits) and third determination (relating to mineral development licences). In each of those cases, the Minister made no attempt to identify land that might be affected by exercise of the subject right to mine; he said that, excluding only national parks and conservation parks, "the particular land or waters concerned could potentially include all types of land in the State where native title has not been extinguished on which such grants can, within the terms of the MRA, be made" (original emphasis: see para 63 of the second statement of reasons and para 70 of the third statement of reasons). In each case, the Minister analysed the activities permitted by the relevant right to mine. They included drilling, but the Minister noted subs (4) of s 26A and pointed to the restrictions on clearing imposed by relevant provisions of the Mineral Resources Act. He also dealt with the enforcement provisions of that Act.
158 In paras 91 and 92 of his second statement of reasons, the Minister expressed these conclusions:
" In summary, I concluded that:* I am required to be satisfied that the activities authorised by the class of acts covered by the determination (ie the grant etc of a low impact exploration permit) are unlikely to have a significant impact on the particular land or waters, which potentially could include all types of land in a State or Territory in relation to which such grants can be made;
* the MRA and other State and Commonwealth legislation restrict the nature of the land over which low impact exploration permits can be granted in Queensland and therefore diminish the likelihood that grants of these permits will have a significant impact on land and waters;
* Parliament intended that a section 26A determination could be made in respect of all grants of a particular mining tenement made under a particular State/Territory law. The second condition must therefore require me to make an assessment of the likely impact of grants of this particular tenement as a class of acts, rather than considering the likely impact of each individual grant within the class covered by the determination;
* a low impact exploration permit is subject to a statutory condition that only low impact activities can be carried out on non-exclusive land. The holder of the permit is therefore limited to conducting a limited range of activities that excludes clearing and excavation except the minimum necessary for establishing a drill site. As a matter of industry practice, a high impact tenement will be sought if the miner intends to carry out intensive drilling because a low impact tenement will be too restrictive to allow the miner to undertake activities associated with intensive drilling. The MRA provides a number of mechanisms which will allow the statutory condition to be enforced; and
* the requirement that permit holders consult with native title parties for the purpose of minimising the impact of the grant of the permit on the exercise of their native title rights and interests etc will provide the opportunity to further minimise the impact of grants on land or waters and do so in a manner which is responsive to the environmental sensitivities of the particular land or waters concerned.
On this basis, I formed the view that the condition in subsection 26A(3) of the NTA that the acts are unlikely to have a significant impact on the relevant land or waters was satisfied in relation to low impact exploration permits granted under part 5 and in accordance with division 2 of part 15 and (where relevant) part 19 of the MRA."
159 Paragraphs 96 and 97 of the third statement of reasons are expressed in identical terms, except for the substitution of "low impact mineral development licence" for "low impact exploration permit".
160 I have considered whether the Minister's reasoning is subject to a second criticism. I wondered whether, although it was open to the Minister to deal with the issue of significant impact on a "worst-case" basis, that course would necessarily require him to decide what was the "worst-case"; that is, to determine the nature of the most environmentally sensitive land to which the determination could apply. The Minister did not do this. He dealt with the matter in general terms, as if all land was equally vulnerable to degradation from mining activities.
161 However, there was always the possibility that, having regard to the particular activities permitted by a particular mining right, nothing could turn on the nature of the land. Upon careful consideration of the matter, it seems to me this is indeed the position in respect of activities permissible under the mining rights covered by the first three determinations.
162 At para 45 of his first statement of reasons, the Minister noted that low impact prospecting permits allow holders to enter non-exclusive land only for prospecting purposes as defined in s 6B of the Mineral Resources Act "or for those purposes and for the purpose of enabling the holder to apply for a mining claim or lease (i.e. pegging)". Section 6B provides:
" (1) `Prospect' means take action to find out about the existence, quality or quantity of minerals on, in or under land by -(a) using a metal detector or a similar hand held instrument; or
(b) sampling using only hand held implements, including, for example, hammers, hand augers, panning dishes, picks, shakers, shovels and sieves.
(2) However, `prospect' does not include taking action that is -
(a) hand mining; or
(b) the removal of minerals for their sale."
163 It is difficult to see how an action covered by s 6B(1) could cause damage to even highly environmentally-sensitive land such as undisturbed wetlands or closed rainforest.
164 Similar observations may be made about the activities permitted under low impact exploration permits (the second determination) on non-exclusive land. They are listed in s 482(1) of the Mineral Resources Act:
"(a) aerial surveys;(b) geological and surveying field work that does not involve clearing;
(c) sampling by hand methods;
(d) ground-based geophysical surveys that do not involve clearing;
(e) drilling and activities associated with drilling that -
(i) do not include clearing or excavation, other than the minimum necessary to establish a drill pad for a mobile rig; and
(ii) do not include clearing or excavation for access to a drill site;
(iii) do not include side hill excavation for access or drill pads as would be necessary on steep slopes; and
(iv) do not include drilling in a watercourse or stream diversion; and
(v) do not include clearing in densely vegetated areas;
(f) environmental field work that does not involve clearing."
I have omitted the examples.
165 It is important to note that two excluded activities, clearing and excavation, are widely defined by s 482(2) of the Mineral Resources Act. That subsection reads:
"(2) In this section -
`clearing' means -
(a) in relation to grass, scrub or bush - the removal of vegetation by disturbing root systems and exposing underlying soil, but does not include -
(i) the flattening or compaction of vegetation by vehicles if the vegetation remains living; or
(ii) the slashing or mowing of vegetation to facilitate access tracks; or
(iii) the clearing of noxious or introduced plant species; and
(b) in relation to trees - cutting down, ringbarking or pushing over.
`excavation' means the use of machinery to dig below the topsoil horizon, but
does not include -
(a) minor levelling of a site to allow a drill rig to operate on a level surface for safety reasons; or
(b) the construction of a small sump for operational purposes.
`top soil horizon' means the top level or layer of soil that is generally less
than 30cm thick."
As I read s 482, and contrary to the applicant's submission, the removal of native vegetation, including native trees, is not permissible under a low impact exploration permit.
166 The activities permitted under mineral development licences on non-exclusive land (the third determination) are the six activities listed in s 482(1), as above, together with "investigations associated with mine feasibility and development". These are apparently non-invasive activities. The examples given by s 538(1) are "engineering and design studies" and "environmental studies and monitoring".
167 It might have been helpful if the Minister had identified the "worst-case" scenario (that is, the nature of the assumed most environmentally-sensitive land) against which he made the judgment that exercise of any of the rights to mine covered by the s 26A determinations would not be likely to have a significant impact on land or waters. However, having regard to the activities permitted pursuant to such rights, it seems to me this omission does not affect the validity of the determinations. It was open to the Minister to conclude none of these activities was likely to cause significant impact, regardless of the nature of the land.
168 I reject the argument that the s 26A determinations were invalidated by the Minister's failure to identify the lands or waters to which they applied.
Unreasonableness
169 Counsel for the applicant argued that the Minister's conclusion that the second condition of s 26A was satisfied was a conclusion so unreasonable as to be incapable of being reached by a reasonable person. They contended this is a case of what lawyers call "Wednesbury unreasonableness": see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229-230. The result, according to counsel, is that each of the s 26A determinations is void.
170 Counsel said:
"The unreasonableness in the Wednesbury sense of the Respondent's conclusions is due in large measure to the broad brush approach he adopted in considering whether the Second Condition was met. It must have been apparent to the Respondent that the entire state of Queensland includes many areas and sites of particular sensitivity to Indigenous cultural heritage. It is submitted that in those circumstances a reasonable decision-maker would have had a particular concern to address in some detail the likelihood of the relevant activities having a significant impact upon such sensitivities. The Reasons suggest that the Respondent was content to adopt a superficial approach to this matter."
171 The problem with this submission is that it confuses physical impact on the relevant land or waters with cultural impact. As mentioned at para 143, it was accepted by all parties that s 26A(3) is concerned with the former, not the latter. No Wednesbury point is available in this case.
Relationship between s 392 and s 421 of Mineral Resources Act:
(i) Background
172 The "fourth condition" of a determination under s 26A of the Native Title Act is that the Minister is satisfied of three things: first, if a determination is made, registered native title bodies corporate, registered native title claimants and representative Aboriginal/Torres Strait Islander bodies, in relation to any affected land or waters, will have a right "to be notified that the act or each act included in the class is to be done", (see s 26A(6)(a)); second, that such persons and bodies will have a right to be heard by an independent person as to whether the act is to be done and the manner of its doing (but only where some other person would have such a right if that person had an interest in the land, (see s 26A(6)(b)); and, third, that such persons and bodies will have a right to be consulted (see s 26A(6)(c)).
173 In relation to the question whether the Mineral Resources Act provides a right to be notified that complies with s 26A(6)(a) of the Native Title Act, the Minister referred, in each of his s 26A statements of reasons, to requirements of the Mineral Resources Act concerning notifications; in the case of low impact prospecting permits, s 431; in the case of low impact exploration permits, s 486; and, in the case of low impact mineral development licences, s 542. In each case, notification has to be given to each "native title notification party", a term that is defined in s 422 to include all the persons or organisations specified in s 26A(6)(a) of the Native Title Act.
174 In para 105 of his first statement of reasons, the Minister explained his view about the content of the notification requirement of s 26A(6)(a) in these words:
"It was my view that a reasonable interpretation of a requirement to notify is that the procedures must at least ensure that, as far as practicable, the notice is received and must require sufficient information about the proposed prospecting permit to be provided so that native title parties are able to judge whether their registered native title rights and interests could be affected and whether they wish to take part in the consultation process."
175 In his second and third statements of reasons, the Minister gave a similar explanation, changing only the reference to the particular proposed mining interest.
176 In each statement of reasons the Minister gave attention to enforcement of the obligation to give notice. In his first statement of reasons the Minister said (omitting footnotes):
"111 The applicant must provide a copy of the notice to the mining registrar. The mining registrar may grant a prospecting permit for land if the mining registrar is satisfied that the applicant is an `eligible person' and has made a `genuine application' that complies with the requirements of the Act. This includes the obligation to notify the native title notification parties. If the mining registrar had not been provided with a copy of the notice, he or she could not lawfully make the grant. If notice has not been given correctly, the mining registrar must direct that a new notice be given.112 There is however a provision in the MRA that appears to allow the relevant Queensland Minister to grant a permit notwithstanding that there has been a failure of the applicant to do things in a prescribed way, where the Minister is satisfied that there has been `substantial compliance'. Queensland officials advised that this provision was only used in circumstances involving a minor discrepancy and that failure to notify at all could not be `excused' under this provision. In relation to the meaning of `substantial compliance' they referred to Re Asset Risk Management (1995) 130 ALR 605:
What the court is concerned with is the practical effect of what has been done, which should be compared with the practical effect the legislature appears to have sought to achieve. But each case is likely to raise its own problems, and it will always be necessary to apply afresh the statutory language.' (at page 607)
113 More importantly, it was my view that the effect of section 421 of the MRA is that if a permit is granted notwithstanding that the applicant has failed to comply with any relevant provision of part 13, for instance the notice requirement in subsection 431(1), the permit will be invalid to the extent that it affects native title. There could be no question of `substantial compliance' for the purposes of section 392 of the MRA."
The Minister identified the provision referred to in the opening sentence of his para 112 as s 392 of the Mineral Resources Act.
177 In both his second and third statement of reasons, the Minister made observations similar to those in paras 111-113 of his first statement of reasons: see paras 113-115 and 118-120 respectively.
178 In the context of the s 43 determinations, a similar issue arose. Section 43(2)(a) requires the existence of alternative provisions, under the relevant State or Territory law, that, in the opinion of the Commonwealth Minister, "contain appropriate procedures for notifying registered native title bodies corporate, representative bodies, registered native title claimants and potential native title claimants of the act". In making each of the fourth to seventh determinations, the Minister considered the consequences of failure to give notice. In his statements of reasons concerning these determinations, the Minister referred to ss 392 and 421, setting out reasoning similar to that contained in his three s 26A statements of reasons: see paras 47 to 49 of the fourth statement of reasons, paras 47 to 50 of the fifth, paras 48 to 51 of the sixth and paras 50 to 53 of the seventh.
179 Section 392 of the Mineral Resources Act provides:
"Where this Act provides that in respect of any matter, the Governor in Council, the Minister, the chief executive, the tribunal or a mining registrar may act if anything has been done in the prescribed way, but that thing has not been done in the prescribed way, the Governor in Council, the Minister, the chief executive, the tribunal or, as the case may be, a mining registrar who is satisfied that there has been substantial compliance with the prescribed way in respect of that thing may record that fact in writing and may so act and the thing shall be deemed to have been done in the prescribed way."
180 Section 421 of the Mineral Resources Act is contained in Part 12. It applies to all the "native title provisions" of the Act, including all the Parts relevant to the Minister's determinations. The section provides:
"An act to which the native title provisions apply is invalid to the extent that it affects native title unless -(a) the procedures of the native title provisions that are required to be complied with by the State before the act is done are complied with by the State, to the extent that the State is a party to any consultation or negotiation about the doing of the act; and
(b) the procedures of the native title provisions that are required to be complied with by the applicant for the doing of the act before the act is done are complied with by the applicant."
(ii) Submissions
181 Counsel for the applicant submitted the Minister's view as to the effect of s 421 is erroneous in law. They said in their outline of submissions:
"As is apparent from the Reasons summarised above, the Respondent has taken the view that Section 421 would operate to render invalid a permit or licence which is granted in circumstances where the applicant has failed to comply with procedural requirements. The Applicant submits that the Respondent's analysis and approach betrays a fundamental misconception of the meaning, effect and potential operation of Section 392 of the MRA. In particular, the Respondent seems not to have appreciated that the effect of that provision is that, where there is substantial compliance, full compliance is deemed to have occurred. Accordingly, where a procedural requirement has not been fully met (such as the requirement to give notice), but there has been substantial compliance, Section 421 would not operate to invalidate the grant of a permit or licence because of the effect of Section 392 of the MRA." (Original emphasis)
182 Counsel for the Minister argued their client's approach was correct. They gave four reasons:
"section 421 is among the `native title provisions' in the MR Act which, being the more specific (and later) provisions, prevail over s 392 to the extent of any inconsistency. Further, s 419 specifically provides that the native title provisions state `additional requirements' in respect of non-exclusive land and it is on those additional requirements that s 421 operates, regardless of s 392.the reference to `an act' which is invalid to the extent that it affects native title under s 421 of the MR act includes the grant, renewal or variation of or certain other acts concerning a relevant mining right: see ss 419 and 423 of the MR Act and the definition of `act' in s 226 of the NT Act.
sections 431 and 432 (in Part 13), ss 486 and 487 (in Part 15) and ss 542 and 543 (in Part 16) of the MR Act are concerned with the giving of notice to native title parties in relation to the grant of low impact mining rights. All of these notification provisions are `native title provisions' for the purposes of the MR Act and, for that reason, the validity of any low impact mining right depends on compliance with those provisions;
section 421(b) of the MR Act expressly provides that an act to which the native title provisions apply is invalid to the extent that it affects native title unless the procedures of the native title provisions that are required to be complied with by the applicant for the doing of the act before the act is done are complied with by the applicant."
183 Counsel argued it followed that, if an applicant for a low impact mining right failed to give the notice required by the relevant provision, s 421 would render the grant of that right invalid to the extent that it affected native title.
184 In any event, counsel said, if s 392 did have a relevant operation, it would not remove the "right to be notified" mentioned in s 26A(6)(a) or impact on the "procedures for notifying" mentioned in s 43(2) of the Native Title Act. "To excuse an insubstantial departure from a prescribed way of giving notice is not the same as depriving a party of a right to be notified".
(iii) Conclusions
185 It seems to me the Minister did fall into error concerning the interaction of ss 392 and 421. Section 392 is contained in Part 11 of the Mineral Resources Act. That Part is headed "General". It makes provisions of general application. Section 392 is a general deeming provision. It applies in respect of any provision in the Act, including what the Act calls "native title provisions"; that is, Parts 12 to 19 inclusive. Section 392 specifies that, in cases to which it applies, "the thing shall be deemed to have been done in the prescribed way". This seems to be a case of the word "deemed" being used to create a "statutory fiction": see Muller v Dalgety & Co Ltd [1909] HCA 67; (1909) 9 CLR 693 at 696. In such a case, the legislature uses the deeming provision for the purpose of attributing a result that would not otherwise occur. In the present case, the Queensland Parliament has conferred on irregular acts covered by s 392 the quality of having been done in the prescribed way. That conferral applies for all purposes, including in respect of s 421. An act that is "deemed to have been done in the prescribed way", for all the purposes of the Mining Resources Act, cannot fall within s 421.
186 However, the Minister's alternative argument is compelling. Both s 26A(6)(a) and s 43(2) are concerned with notification requirements. The matter committed to the Minister's consideration is the substance of those requirements, not the effect of failure to follow the statutory requirements. It seems to me the issue in relation to which the Minister erred was one that was unnecessary for him to consider at all. There is no reason to think that, if he had not considered that issue, he would have reached a decision different from that which he did reach. Accordingly, it would be inappropriate to use the Minister's error as a basis for setting aside his decision.
187 Some submissions were made about the effect of s 393 of the Mineral Resources Act. This is a companion provision to s 392, providing for deemed compliance in certain cases where the holder of, or applicant for, a mining tenement has been unable to comply with a requirement of the Act. However, it does not appear that the Commonwealth Minister fell into any error in relation to this provision. Indeed, he does not seem to have averted to it at all. Nor was he required to do so. The existence of that provision could not affect the existence or otherwise of the rights and procedures mentioned in s 26A(6) of the Native Title Act.
Relief
188 In the result, there is only one aspect of the applicant's contentions that gives rise to a possible claim for relief: the Minister's reliance, in connection with the four s 43 determinations, upon uncommenced Queensland legislation: see paras 74 to 100 above.
189 At para 86 above, I pointed out that the Minister was aware, when he made the s 43 determinations, that the 1998 and 1999 amendments to the Mineral Resources Act were not yet in operation. At para 99 I expressed the opinion that the Minister erred in relying on them in making those determinations. The question now arises whether this conclusion affords the applicant a remedy under s 39B of the Judiciary Act.
190 There are, perhaps, two major differences between a proceeding under the Administrative Decisions (Judicial Review) Act and an administrative proceeding under s 39B of the Judiciary Act. The first lies in the restricted scope of the Administrative Decisions (Judicial Review) Act: the review must relate to a "decision of an administrative character" made "under an enactment" by a Commonwealth authority or an officer of the Commonwealth (see s 5 read with definitions in s 3) or to conduct in relation to such a decision (see s 6). On the other hand, from an applicant's point of view, the Administrative Decisions (Judicial Review) Act offers the advantage of a simple procedure and articulated grounds of review. Arguably these are wider than those available at common law, and therefore under s 39B of the Judiciary Act: see Aronson and Dyer, Judicial Review of Administrative Action, (second ed. 2000) at 37.
191 Section 5(1)(f) of the Administrative Decisions (Judicial Review) Act makes it a ground of review "that the decision involved an error of law, whether or not the error appears on the record of the decision". It is irrelevant whether or not the error of law related to the jurisdiction of the decision-maker, although this may affect the exercise of the Court's discretion in relation to relief. On the other hand, at common law (and so under s 39B of the Judiciary Act) the distinction between jurisdictional and non-jurisdictional error of law is important: see Aronson and Dyer at 166-172. It is not necessary to canvass all the nuances of that distinction; it is sufficient to say the common law clearly provides a remedy in respect of errors of law that go to the jurisdiction of the decision-maker.
192 Section 43(1) of the Native Title Act makes it a condition precedent to the Minister's jurisdiction to make a determination under that section that "a law of a State or Territory provides for alternative provisions" to those contained in Subdivision P of Division 3 of Part 2 of that Act. As we have seen, Queensland law did not so provide at the time when the Minister made his four s 43 determinations; accordingly, he had no jurisdiction to make those determinations. In supposing that he did have jurisdiction, the Minister fell into a jurisdictional error in relation to which relief is available at common law, and so under s 39B of the Judiciary Act.
193 Neither of the respondents submitted relief should be withheld on discretionary grounds; I think rightly so. The 1998 and 1999 amendments to the Mineral Resources Act are now in operation, so it may now be open to the Commonwealth Minister to make fresh determinations that avoid the problem I have identified. However, that does not seem to be a sufficient reason for the Court to decide, as a matter of discretion, to leave in place a series of statutory determinations made pursuant to a jurisdictional error of law. The Court should not make any assumption about the course the Minister will wish to take. The invalid determinations being set aside, this should be left for his decision.
194 It is, I think, sufficient for me to dispose of the case by making declarations of right. I propose to declare that the 1998 and 1999 amendments to the Mineral Resources Act are not invalid because of failure to satisfy s 24MA of the Native Title Act or inconsistency with the Racial Discrimination Act, that each of the s 26A determinations is valid but that each of the s 43 determinations is invalid.
195 I will reserve the matter of costs. The parties have achieved mixed results. The applicant has obtained relief in respect of four of the determinations, but on a more restricted basis than it contended. It has failed in respect of the statutory invalidity argument and the remaining three determinations. In this situation, it may be appropriate to make no order as to costs. However, I have not reached any firm view about costs and I am ready to consider any submission to the contrary. Any party who wishes to put such a submission should forward it to my associate within 14 days. Any party wishing to respond to that submission should do so within 14 days thereafter.
I certify that the preceding one hundred and ninety-five (195) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. |
Associate:
Dated: 8 February 2002
Counsel for the Applicant: |
Mr J Basten QC and Dr J Griffiths SC |
|
|
|
Solicitor for the Applicant: |
Chalk & Fitzgerald |
|
|
|
Counsel for the First Respondent: |
Mr P Hanks QC and Ms L McCallum |
|
|
|
Solicitor for the First Respondent: |
Australian Government Solicitor |
|
|
|
Counsel for the Second Respondent: |
Mr R P L Lancaster |
|
|
|
Solicitor for the Second Respondent: |
Crown Law |
|
|
|
Dates of Hearing: |
2, 3 and 4 October 2001 |
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2002/58.html